Chapter V

AN OVERVIEW OF JUDICIAL ATTITUDE TOWARDS VICTIM

JUSTICE IN INDIA

5.1 AN OVERVIEW

In the previous chapter the development of victimology as a concept and victim justice as an
ambition and obligation in the Indian context has been discussed. Elaborate discussion has been
made on the laws that concern rights, various schemes and an overall perspective of the
legislative and the administrative actions towards achieving goals aimed at by the Legislature. In
India the judiciary developed victimological and compensatory jurisprudence through its various
pronouncements under section 357 CrPC, Constitutional Law and various other analogous
legislations that recognize victim rights. Therefore, in this chapter, an attempt has been made to
understand and analyze how the judiciary has interpreted and used the legislative provisions in
the course of rendering victim justice. This chapter is divided into three parts. They are:
1. Compensation through Sec 357 CrPC
2. Compensation as a Constitutional Remedy
3. Victim Justice through Analogous Legislations

5.2 COMPENSATION THROUGH Sec 357 CrPC

1. Palaniappa Gounder v. State of Tamil Nadu1

Facts: In this case, Palaniappa Gounder was convicted for the murder of Sengoda Gounder. Two
appellant’s son and daughter in law were also convicted for abetting the murder. A fine of
Rs.20,000 was imposed by the High Court after it commuted the death sentence awarded by the
Sessions Court to life imprisonment. It further made an order that, the son and daughters of the
deceased should receive Rs.15,000 out of the fine amount, under Section 357 (1) (c) of CrPC.

1
AIR 1977 SC 1323

134
The Apex Court in the appeal was essentially concerned with the “legality and propriety of the
sentence of fine imposed by the High Court”.
An observation was made by the Apex Court as it examined the special leave petition. It
observed that courts possessed the power of imposing fine under Section 302 of the IPC in case
of murder, but the High Court had opined that the propriety of imposing the fine was based on
the amount of compensation. The court remarked that the ultimate purpose for imposition of fine
is to ensure its realization and not to ensure that the offender shall undergo the sentence in case
he is unable to pay the fine, but this is possible only if the fine is rationally imposed subject to all
the other factors.
The fine amount was finally reduced from Rs.20,000 to Rs.3,000 by the Apex Court and
directions were given so that the son and daughters of the deceased would be paid the recovered
amount.

2. Sarwan Singh & Ors. v. State of Punjab2

Facts: An application was put up by the deceased Mewa Singh with the Revenue Authority
against Sarwan Singh and the other accused. The other accused included Bachan Singh, Karnail
Singh, Zora Singh and Malkait Singh. All of them were related to each other. While the
application was pending with the authority, Mewa Singh was attacked with deadly weapons by
the accused and suffered severe injuries. He ultimately succumbed to the injuries the following
day.
In this judgment, the Supreme Court exhaustively laid down certain points to be considered
while imposition of fine or compensation. The Honorable Court observed that in case of
awarding compensation, it is a necessary obligation for the court to consider some factors like,
“nature of the crime, the injury suffered, the justness of the claim for compensation, the capacity
of the accused to pay and other relevant circumstances in fixing the quantum of fine or
compensation”. The court stated that while awarding compensation under section 357(3), the
court should first find out whether the respective case is an appropriate case for awarding
compensation. For this purpose it is very important to realize the capacity of the accused to pay
the compensation amount. In case the accused is not capable to pay the fine or compensation,

2
AIR 1978 SC 1525

135
imposition of an extended period of imprisonment would not ultimately fulfill the objective of
awarding the compensation.
In this case, after considering all the relevant factors, the court was of the opinion that on
each of the accused, in addition to the rigorous imprisonment for 5 years, a fine of Rs. 3,500
should be imposed under Section 304 (1) IPC. The widow of Mewa Singh was to be paid the fine
as compensation and in case the accused failed to make the payment, the accused would have to
further undergo simple imprisonment for six more months.

3. Guruswamy v. State of Tamil Nadu3

Facts: In this case the victims were brother and father of the accused who was convicted for the
murder. Petha Goundan, the father of the accused, thirteen years ago, had divided his ten acres of
land equally between two of his sons, Guruswamy, the accused and the other deceased. Petha
Goundan expected that his sons would be providing him Rs 250/- annually for his maintenance,
which he received initially for some time. Subsequently, he wanted his share of the property
from his two sons which this gave rise to the misunderstanding since the appellant was not
willing to hand over the share to Petha Goundan. One night at about 9 p.m. the appellant along
with some others came to the house of the second deceased and attacked Petha Goundan, his
other son and also assaulted his daughter in law from his other son. Petha Goundan and his other
son succumbed to injuries caused with sticks which ultimately gave birth to this case.
The Supreme Court, reduced the sentence from death penalty to imprisonment for life
and observed that compensation should be provided to the widow of the son of Petha Goundan
and her minor children as they have suffered due to the death of the second deceased. A fine of
Rs.10,000 was imposed by the court to the appellant. The court also ordered that the dependents
of the victim were to be paid the same as compensation.

4. Hari Krishnan and the State of Haryana v. Sukbir Singh and others4
Facts: An altercation near the tube well of Hari Kishan gave rise to a violent incident which
resulted in seven persons to be convicted under section 307/149, 325/l49, 3231/149 and 148 IPC.

3
AIR 1979 SC 1177
4
AIR 1988 SC 2127

136
In this case the Supreme Court opined a similar philosophy which was previously documented in
Sarwan Singh and stated that the provision under section 357 is a means to respond to crime and
reconcile the victim with the accused. It also pointed that the compensation should be reasonable
subject to all the other relevant factors. For serving the purpose of justice and maintain faith in
the system the compensation amount was enhanced to Rs.30000/- and recommended all the
courts to make use of this law most liberally.
In this case, a reference was made to Sarup Singh v. State of Haryana5 . In the referred
case, the Supreme Court directed to pay Rs. 20000 by way of compensation while it reduced the
sentence. The court here enhanced the amount of compensation after bringing into consideration
factors like the milieu in which the crime has taken place, gravity of the injury etc. The court said
that the entire amount was to be paid to the injured after proper identification. The Court ordered
that within four months the compensation amount was to be deposited with the trial court. In
case of failure, the appellant will be required to undergo imprisonment for four years.
In this case, the compensation amount to be paid to the victim to ensure that the
compensation amount is reasonable was finally fixed at Rs 50000.

5. Balraj v. State Of U.P6

Facts: In this case, Balraj, the accused was convicted for murder of four persons under section
302 of IPC and for attempt to commit murder under section 307. The incident occurred due to
dispute related to opening of a shop between Tej Pal, his wife and Balraj (brother of Tej Pal).
The Division Bench of the High Court had confirmed the conviction and the sentence awarded
by the trial court.
The Supreme Court in appeal realising the importance of section 357 CrPC, and the fact
that the accused owned some property and had some means, ordered for the payment of Rs
10000 as compensation to Smt Laxmi Devi by Balraj.

5
AIR 1995 SC 2452
6
AIR 1995 SC 1935

137
6. Rachhpal Singh v. State of Punjab7
Facts: This case arose as a reaction to an interim order pertaining to the civil dispute between the
deceased and the appellant which in turn led to a fight between them. Shots were fired by the
first two appellant at the two deceased who succumbed to injuries due to the two bullets
individually and died on the spot.
The first two appellants were convicted and sentenced by the Sessions Judge to death
under and the other accused was sentenced to life imprisonment. The accused were also subject
to imprisonment of different terms apart from the fine which was imposed for other offences.
The accused made an appeal against this order which challenged the convictions and sentences.
A Criminal Revision Petition was also filed by the complainant and prayed for grant of
compensation under Section 357 CrPC. The High Court, while it considered the revision petition,
observed that the present case was an appropriate case for application of Section 357 CrPC and
directed Rs. 2,00,000 to be paid by each of the appellants and in case of default to make the
payment, they would be required to serve a sentence of five years rigorous imprisonment.
In appeal, the Supreme Court, while expressing its concurrence with the reasoning of the
lower courts, upheld the conviction and sentence. The Apex Court further, regarding the award
of compensation under section 357 observed, that based on the records and materials, since the
appellants were reasonably affluent, they possessed the capacity to pay at least Rs.1, 00,000 per
head as compensation. Thus, the Apex Court modified the order of the High Court and the
compensation amount which was to be paid was reduced from Rs.2,00,000 each to Rs.1,00,000
each.

7. Mangilal v. State of Madhya Pradesh8

Facts: In this case, the appellant along with seven others faced trial for causing death of Rajinder
Kumar and injury to another person. The trial court did not order for payment of any
compensation to the heirs of the deceased and the injured person. This was not considered
appropriate by the High Court and so it ordered each of them to pay Rs 30000 as compensation
according to section 357(3) and 357(4) of CrPC. The Court directed that 2/3 of the amount
should be given to the heirs of the deceased and the remaining 1/3 to the injured.

7
2002 Cr LJ 3540 SC
8
AIR 2004 SC 1280

138
 The Supreme Court observed that the power to award compensation to the victims under
Section 357 was not ancillary to any other power. The distinction that exists between subsection
357(1) and 357(3) is that Section 357(3), even in the absence of imposition of fine, unlike section
357(1), empowers the court to direct payment of compensation.

8. Bipin Bihari v. State of Madhya Pradesh9

Facts: In this case, when the complainant rushed towards his sister-in-law on hearing her cry,
while he was grazing his ox in his field, he found that his sister-in-law was restrained from
cutting the crop and the appellant had entered into an altercation with her. The appellant was
possessed a gun and also threatened of dire consequences. Disregarding the threat, when the
complainant tried to get hold of the gun, in the scuffle the appellant threatened to kill the
complainant. Subsequently, when he fired a shot, it hit on the right calf of the complainant and
ripped off the flesh from the spot. Further, the appellant was unable to load the gun again as the
complainant was grappling with him. During this time, when the appellant saw as some persons
had arrived on the spot, he fled from there leaving the gun behind.
The trial court which found the appellant guilty under Section 307 IPC directed that the fine
amount of Rs 5000 should be paid to the complainant under Section 357, Criminal Procedure
Code (CrPC) as compensation.
When the matter came to the High Court in appeal, it opined that imposition life
imprisonment on the appellant was unjustified and expressed that imposing two years rigorous
imprisonment would be appropriate. On the issue of awarding compensation, Bhaskaran v.
Sankaran Vaidhyan Balan10 was referred by the court, where the Apex Court, while considering
the scope of Section 357(3) CrPC laid down that the Magistrate could not restrict its power while
awarding compensation under Section 357(3), since this provision was not subject to any
limitation and thus the Magistrate could use provision to award any amount of compensation but
it also held that at the time of fixing the amount of compensation, reasonability of the amount of
compensation should also be considered.

9
2005 Cr LJ 2048 MP
10
AIR 1999 SC 3762

139
9. Manjappa v. State of Karnataka11
Facts: In this case, the complainant was caused simple hurt by the accused voluntarily and due
to the facts the accused was subject to charges under Sections 323, 325 and 504 of the IPC.
The trial court apart from awarding imprisonment and fine further directed that under Section
357(1) (b) of the CrPC, 1973 Rs. 2000 out of the fine amount was to be paid to the injured-
complainant.
In appeal, the appellant was acquitted for the offence punishable under Section 323 IPC
by the Sessions Judge, after taking into consideration the evidences and hearing the arguments.
However, conviction under Section 325 IPC was confirmed. It was further directed by the
appellate court to make a payment of Rs. 3000 as compensation to the complainant who had
suffered grievous injuries. The fine and compensation ordered by the trial court was also
confirmed.
Subsequently, the High Court while responding to the revision petition though confirmed
the conviction but partly allowed the revision and ordered to pay a fine of Rs. 1000 in addition to
what was ordered by the courts earlier. The Honorable Judges of the Supreme Court,
subsequently in appeal, opined, it would be appropriate in the respective case to require the
appellant to pay compensation of Rs 10000 apart from the fine.

10. Manish Jalan v. State of Karnataka12

Facts: In this case the accused was driving a tanker rash and negligently on a public highway.
While so driving it dashed against a ‘Kinetic Honda scooter’ which was driven by the deceased
and caused the deceased to fall down and run over by the left wheel of the tanker. On way to the
hospital, the deceased succumbed to the injuries suffered.
The accused was held guilty for offences under sections 279 and 304A IPC. This appeal in the
Supreme Court was against the High Court decision, which had concurred with the opinion of
the Trial Court about finding the accused guilty under sections 279 and 304A IPC but had
reduced the sentence from simple imprisonment for one year and fine of Rs.5000/- and in case of
default to pay the fine, undergo simple imprisonment for two months to simple imprisonment for

11
Criminal Appeal No. 766 of 2007
12
AIR 2008 SC 3074

140
one year and a fine of Rs.5000/- for the offence under Section 279, IPC and simple imprisonment
for six months and fine of Rs.5000/- for offence under Section 304A, IPC.
The mother of the deceased had expressed her willingness to compound the offence and
accept the appropriate amount of compensation as the respected court would feel reasonable and
just. However, compounding of the offences was not possible, since Section 279 and 304A IPC
are not covered in the tables which permit compounding of offences under section 320 CrPC.
In appeal the Supreme Court upheld the conviction under section 279 and 304A and opined,
“that that the ends of justice would be met if the sentence of imprisonment is reduced to the
period already undergone but in addition thereto, the appellant should be directed to pay an
amount of Rs. 1,00,000/-to the mother of the deceased by way of compensation.”
For the grant of compensation it referred to section 357 and stated that though this
provision has been in existence for long enabling the courts to grant compensation but in reality,
it has been used very scantily. It referred to Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and
Anr.13 which stated that the amount of compensation should be reasonable and not arbitrary.

11. Roy Fernandes v. State of Goa14

Facts: A sudden dispute arose due to the proposed fencing of a property. The accused appellant
along with four other accused had arrived at the spot of dispute to intervene and prevent the other
party from putting up the fence. A knife blow on the thigh caused by one of the accused led to
the death of the deceased.
The trial court observed that since all the five accused were guilty of offences punishable
under Sections 143, 148, 323, 325 and 302 read with Section 149 IPC, each one of them were
subject to rigorous imprisonment for one month under Section 323 and rigorous imprisonment
for two month for the offence committed under Section 143, three months' rigorous
imprisonment for the offence committed under Section 148 and rigorous imprisonment for one
month along with a fine of Rs. 1000/- each under Section 325. Apart from this, the accused
individuals were also sentenced to life imprisonment and Rs. 2,000/- as fine for offence under
Section 302 of the IPC.

13
3(2007) 6 SCC 528
14
AIR 2012 SC 1030

141
 Aggrieved by the aforementioned judgment and order, the accused persons appealed at
the High Court of Bombay at Goa. The conviction and sentence awarded to the appellant, Roy
Fernandes and Anthony D'Souza was upheld by the High Court but the conviction and sentence
awarded to the other three persons was set aside. Anthony D'Souza preferred a special leave
petition, against the judgment of the High Court, which was dismissed by the Supreme Court.
The court affirmed the conviction of the accused appellant under section 323 and 325 of
the IPC and sentenced him to the period of imprisonment already undergone. The Court referred
to section 357 of CrPC, which speaks of compensation and stated that the power embodied in the
provision should be exercised having regard to the nature of injury, loss suffered by the victim
and the capacity of the accused. The court directed the appellant to deposit a sum of Rs 300000
as compensation to the widow of the deceased or to the legal heirs (in case of failure to make the
payment to the widow). Similarly, it was also directed to pay a sum of Rs 100000 and Rs 50000
to the dependants of the other two victims.

Sec 357A

1. Ganesh Karmakar v. State of Assam15

Facts: In this case, on 2.11.2007, Sri Ramesh Nayak the deceased and the appellant, Ganesh
Karmakar had gone to Tinsukia town in search of work as a daily labourer. Around 3 p.m., the
dead body of Ramesh Nayak, , was found in a drain with cut injuries, at Itakhuli Tea Estate.
The Guwahati High Court found no merit in this appeal. The High Court, in its judgment,
referred to section 357A CrPC and made the following observation. The State Government was
ordered to deposit an amount of Rs.50,000/- with the District Legal Services Authority of
Tinsukia District. The District Legal Services Authority, was asked to subsequently, make an
enquiry to find out whether, there were any dependants, who had suffered loss and injury due to
the death of the deceased. If on enquiry they found that such dependents or legal representatives
were in need of any rehabilitation, then the District Legal Services Authority was required to
release the interim amount and thereafter, as per the scheme of the State Government, provide
adequate compensation. If no such dependents were found or that no rehabilitation was required

15
Criminal Appeal(j) no.41/2009 (Date of Judgment: 19.1.2012)

142
for such dependants, then the amount of Rs 50,000 shall be immediately refunded to the State
Government.

5.2 COMPENSATION AS A CONSTITUTIONAL REMEDY

1. Rudal Shah v. State of Bihar16

Facts: The petitioner Rudal Shah was illegally imprisoned for more than fourteen years and
Habeas Corpus was filed before the court for his release. The writ prayed for his rehabilitation
cost, medical charges and compensation for illegal detention.
The Court granted monetary compensation of Rs.35, 000 against the Bihar Government
for keeping the person in illegal detention for 14 years even after his acquittal. The Court
departed from the traditional approach, ignored the technicalities while granting compensation. It
opined,
“The right to compensation is some palliative for the unlawful acts of instrumentalities
which act in the name of public interest and which present for their protection the powers
of the State as a shield”.

2. Bhim Singh v. State of Jammu and Kashmir17

Facts: In this case the appellant, who was a MLA, was arrested by the police in connivance with
the local A.D.M. while he was going to attend an Assembly meeting. Following the mischievous
and deliberate arrest, he was detained in the police custody with the objective of preventing him
from attending the session of the Assembly.
The Apex Court held that the victim’s fundamental right guaranteed by Art 21 was denied and
thus directed the State of Jammu and Kashmir to pay Bhim Singh Rs 50,000 within two months
from that day.

16
(1983) 4SCC 141
17
AIR 1986 SC 498

143
 3. R.Gandhi v. Union of India18
Facts: After the unfortunate assassination of Smt. Indira Gandhi, there were widespread barbaric
incidents throughout the country, which particularly affected the Sikh community. Coimbatore
also fell prey to such incidents. This was a Public Interested Litigation initiated by two
Secretaries of the Indian Association of Lawyers (Tamil Nadu Chapter) and two students of the
B.L. for the cause of these victims.
The Court in this case concurred that the duty of the Court is,
“not only to enforce fundamental rights but also to award compensation against the State
for violation of these rights. In other words, 'the power of the Court is not only injunctive in
ambit, that is preventing the infringement of a fundamental right but it is also remedial in scope
and provides the relief against the breach of the fundamental right already committed.'”
The State Government was directed by the Madras High Court, to pay Rs 33,19,033 as
compensation, based on the recommendation by the Coimbatore District Collector to the Sikh
and other families living in Coimbatore, who were victims of arson and rioting due to the
assassination of the former Prime Minister.

4. SAHELI, A Women's Resources Centre, through Ms. Nalini Bhanot v.

Commissioner of Police, Delhi Police Head-Quarters and Ors.19
Facts: This case dealt with the death of a young boy whose mother and her children were
harassed by their landlord in connivance with the local police for evacuating the rented property
where the mother stayed with her children. The mother was physically harassed and molested by
the police along with the landlord and her son was brutally tortured in police custody as a result
of which the child ultimately died. This writ petition related to the claim of compensation by the
mother of the nine year old boy who died due to torture of the police.
In this case, the Delhi Administration was directed by the Supreme Court to pay Rs 75,000 as
exemplary compensation to the mother of a boy, nine year old, who had succumbed to the
beating by the police and died.

18
AIR 1989 Mad 205
19
AIR 1990 SC 513

144
5. Kumari (Smt) v. State of Tamil Nadu20
Facts: In this case, the appellant had filed a writ petition before the Madras High Court praying
for a writ of mandamus and Rs 50,000 as compensation for the death of her six year old son, who
died due to falling into a ten feet deep open sewerage tank. The High Court refused to make the
order for the compensation and dismissed the writ petition.
However, the Apex Court differed with the High Court and ordered a compensation of Rs
50,000 along with interest at 12% per annum from 1st of January, 1990 till the date of payment to
be awarded by the State of Tamil Nadu to the mother of the child who fell into a deep uncovered
sewerage tank.

6. Nilabati Behera v. State of Orissa21

Facts: This case concerns about the custodial death of the son of Nilabati Behera who was
picked up by the police from his residence in connection with some investigation relating to
theft and whose dead body was subsequently found on a railway track with multiple injuries.
Mrs Nilabati Behera filed a writ under Article 32 for the determination of amount of
compensation for the death of her son in police custody.
In this case compensation of Rs 1,50,000 was awarded for custodial death. The Supreme
Court devised new tools, devised new methods and adopted new strategies for the
purpose of making fundamental rights meaningful to the victims of crime who were
subject to violation of Article 21.

7. Dr. Jacob George v. State of Kerala22

Facts: Thankamani married Sathyan and had a son out of the wedlock. Six months after
the birth of the child, Sathyan deserted Thankamani but reconciled with her after some time i.e.
around three months prior to the death of Thankamani. After their reconciliation, Thankamani
conceived for the second time but she was not interested to proceed with her pregnancy. For

20
AIR 1992 SC 2096
21
AIR 1993 SC 1960
22
(1994) 3SCC 430

145
 the purpose of terminating her pregnancy i.e. aborting the child, she went to a clinic where the
operation for the purpose of abortion was done. Thankamani died following the operation, in
the clinic. The victim expired since her uterus got perforated due to the use of some scientific
instruments by the appellant, who was a homeopath and had no training about the use of such
instruments.
In this case, the Supreme Court modified the sentence of the High Court and enhanced
the fine which was imposed by the High Court from Rs 5000 to Rs 100000 to be paid to the
son of the deceased who was a minor and reduced the sentence. The sum of money was to be
deposited in a nationalized bank in the name of the minor son from where the guardian of the
minor could take the interest of the deposit and use it for the development of the child and on
attaining majority, the son would decide how he chose to use the money which the bank would
follow.

8. Delhi Domestic Working Women Forum v. Union of India23

Facts: In this case, six village girls were raped by seven Military jawans, while they were
traveling in a train. The six women domestic servants were travelling by Muri Express from
Ranchi to Delhi. The jawans mercilessly molested and raped the girls in the train and
threatened to throw them from the running train in case they created hue and cry. The girls
tried to report the matter to the police during their journey but failed. On reaching New Delhi
Railway Station, with the assistance of some other army personnel and policemen, the FIR was
lodged with New Delhi Railway Station.
In this case, it was stated that the jurisdiction to pay compensation shall be treated to
be part of the overall jurisdiction of the courts trying the offence of rape, which is an offence
against basic human rights. In this judgment, the National Women Commission was also
directed by the Apex Court to prepare a rehabilitation scheme for such victims and it expressed
the need for setting up a Criminal Injuries Compensation Board, which would decide the
quantum of compensation to be paid to such victims of rape after taking into consideration
various relevant factors like the pain, suffering and shock, loss of earning due to pregnancy etc.
It specified that,

23
(1994) 4 SCALE 608

146
 “Compensation for victims shall be awarded by the court on conviction of the offender
and by the Criminal Injuries Compensation Board whether or not a conviction has taken
place”.
It also spoke of providing legal representation and assistance to the victims of such
sexual offence. It emphasized on maintaining anonymity of the victim.

9. P.Rathinam v. State of Gujarat24

Facts: The matter in this case pertained to the rape of a tribal woman in the police
custody, allegedly in the presence of her husband. A Commission was appointed by the
Supreme Court to find out the true state of affairs, which opined that the incident of custodial
rape was true. It had pointed out the officers who had committed the crime and also those who
had been guilty of inaction and/or dereliction of duty in the matter. On the basis of the report
of the Commission, departmental enquiries were commenced against various officers. Some
of them had been concluded but most of them were still pending.
The Apex Court directed the State of Gujarat and other concerned officers to conclude
the said enquiries expeditiously. To the unsatisfactory explanation, given by the state
government, causing the delay, the Supreme Court gave the following directions:
1. It is directed that all the enquiries should be concluded within a period of three months
and an affidavit should be filed indicating the result of such enquiries. Any delay or violation
of this order, it is made clear, shall be viewed seriously and the persons responsible therefore
shall be answerable.
2. A sum of Rs 50,000 (Rupees fifty thousand only) was to be paid as interim
compensation, by Gujarat, to the victim of the rape Smt Guntaben, wife of Hanna Ramji. The
said amount was to be deposited in the State Bank of India at Rajpipla, District Bharuch
within a period of six weeks from that day. Soon after making the deposit in the Bank the
Government through Mamlatdar, Rajpipla, District Bharuch, was to intimate the said lady of
the deposit and further that she is free to withdraw the amount as soon as she likes. The lady
shall be free to utilize the said amount in such manner as she deem fit. The Mamlatdar was to
make all efforts immediately to intimate her of this order through an officer of the Rajpipla
Social Service Society

24
1994 SCC (Cri) 1163

147
 10. Gudalure M. J. Cheriyan and Others v Union of India and Others25
Facts: in this case, late at night some ‘miscreants’ entered a convent through the kitchen and
caused physical assault and rape on the sisters residing inside the building and manhandled
their domestic help and forcefully took away her earrings and wrist watch. The miscreants
committed rape on two sisters and the others were threatened and physically tortured. They
further broke open the almirah and took away Rs 1,11,000 which was kept for making the
payment to the staff and bookseller. An FIR was lodged for this incident by Sister Floreena
in the Police Station of Gajraula, the following day, early in the morning.

The Supreme Court had asked the CBI to make an investigation and submit a report on
this case. The report submitted read, “32. The offences of rape, sodomy, house-breaking by
night and robbery on the night of 12/13-7-1990 in St. Mary's Convent School, Gajraula are
established.

33. There is no evidence to justify the charge-sheet filed by the local police against four
accused namely Iqbal, Samar Pal, Babbu @ Humayun Kabir and Jameel.

34. Having exhausted all possible avenues of investigation, with little change of tracing the
real accused in the case, the further investigation of the case by the CBI has been closed. In
case any fresh clue turns up, the investigation would be reopened and taken to its logical
conclusion.

35. The major lapses amounting to misconduct on the part of Shri Subhash Kajla, then SO
Gajraula, Shri Bharat Ratan Varshney, then SI Gajraula and Dr Meera Singh, Lady Medical
Officer, VZ Hospital, Moradabad, make them liable for disciplinary action".
The four accused persons were subject to trial before the IX Additional Sessions Judge,
Moradabad, and the learned judge was required to pass a speaking order in this matter after
considering the report of the CBI. This court ordered the Uttar Pradesh Government, “to
suspend these officers with immediate effect pending disciplinary proceedings” and directed
the state to pay compensation of Rs 250000 to the two sisters who were victims of rape and
Rs 100000 to the other sisters and the maidservant. The Apex Court also stated that the
compensation amount could be subsequently recovered from the officers responsible.

25
1995 Indlaw SC 1657

148
 11. State of M.P. v. Shyam Sunder Trivedi and others26
Facts: In this case, Nathu Banjara was brought to police station Rampura by Rajaram, head
constable and Ganniuddin, constable, as a suspect for the purpose of interrogation of a
murder case. At the police station Shyam Sunder Trivedi, sub inspector, Ram Naresh Shukla
head constable along with two others physically tortured Nathu Banjara for the purpose of
extracting confession from him in the murder of a harijan woman. Nathu Banjara died
subsequently in the police custody due to the injuries suffered. The police removed the body
in a jeep and wanted to cremate the deceased as an ‘unclaimed body’. Subsequently, due to
the protest and intervention of the local people and higher authorities, the matter was
controlled and orders were made to conduct a magisterial enquiry.
The High Court convicted Trivedi and held him responsible for the torture on the
deceased Nathu Banjara. He was sentenced to two years rigorous imprisonment for offences
under section 201 and 218 IPC each and acquitted of charges under section 147 and 302/149
IPC as pronounced by the trial court.
In this case, Supreme Court was not in complete agreement with the High Court decision and
held Shyam Sunder Trivedi guilty under section 304 Part II/34 IPC and ordered him to
undergo rigorous imprisonment for two years and make a payment of Rs 50,000 as fine. In
case of default to pay the fine, he would be required to further undergo rigorous
imprisonment for two more years. Ram Naresh Shukla, Rajaram Mishra and Ganniuddin
were convicted under sections 304 part II/34, 201 and 342 IPC and sentenced to one year
rigorous imprisonment and a fine of Rs, 20,000 individually, and in default of payment of
which they would be required to undergo rigorous imprisonment for another year more for
the offence under section 304- II/149 IPC. It further directed that the entire fine was to be
paid as compensation to the heirs of the deceased after realizing the same from the
respondents.

11. Inder Singh v. State of Punjab27

Facts: This was a case of grave human rights violations involving abduction and
elimination of seven persons by misusing police power to wreck private vengeance

26
1995 4SCC 262
27
(1995) 3SCC 702

149
 committed by Punjab Police. A group of policemen led by Baldev Singh, D.S.P. forcefully
removed seven persons from their farm house in suspicion of they having a connection
with the terrorist abduction of the brother of Baldev Singh. After they were abducted by the
police party they were illegally detained in various police stations of Punjab and since after
that they could not be traced ever again. It was reasonable to believe “that in all probability
they were killed by those who abducted them”.
The Supreme Court ordered payment of Rs 1.50 lakhs as compensation by the state, to
each of the seven victims, within two weeks, as a token of its failure to maintain law and
order. It also said that the stated amount could recovered from the person’s found guilty.

12. State of Punjab v. Ajaib Singh28

Facts: This was a unique case where the Supreme Court granted huge compensation to the
victim even after the accused was acquitted. In this case, death of two police officers was
caused in course of an altercation between a police officer and the other two police officers
(victim).
In this case, though the accused was acquitted as he was believed to have acted within his
powers of private defense, but the court ordered the accused to pay to the heirs of the
deceased a sum of Rs 500000, which the accused had offered the family of the victim, to
avoid the unnecessary litigation but the victim’s family had refused and opted to proceed
with the litigation. Out of Rs 500000, Rs 350000 was to be given to the dependents of one
victim and the remaining to the dependents of the other victim. This was a remarkable
judgment.
13. Bodhisattwa Gautam v. Subhra Chakraborty29
Facts: The accused on a false promise of marriage cohabited with the victim and
subsequently, falsely performed the marriage ceremony in front of family deity by applying
vermillion on the complainant’s forehead. He even committed the offence of miscarriage as
he forced the victim to undergo abortion twice during the period. The act of exploitation
committed by the accused on the victim was an example of extreme cruelty affecting the

28
1995 2SCC 486
29
AIR 1996 SC 922

150
 physical and mental health of the victim. The accused had committed offences under section
312/420/493/496/498-A of IPC.
The Apex Court in this case, compared the plight of the woman to that of a victim of
rape, equating the condition of both the victims and observed that compensation to victim
shall be justified in similar situations, even if the accused was not convicted. It emphasized
on the right of the Court to award interim compensation. The instant case was a rape case and
the Supreme Court ordered the accused to pay an interim compensation of Rs 1000 per
month to the victim during the continuance of the trial proceeding. The payment of interim
compensation would prevent undue delay in delivery of justice to victim.

14. State of A.P. v. Challa Ramkrishna Reddy30

Facts: Challa Chinnappa Reddy and Challa Ramkrishna Reddy, his son, on being remanded
in judicial custody were kept in Cell No.7 of Sub-jail, Koilkuntla. On the night between 5th
May and 6th May, 1977, some men entered the sub jail and exploded bombs in cell no.7. As a
result of this explosion Challa Chinnappa Reddy suffered grievous injuries and ultimately
succumbed to them in hospital. His son Challa Ramkrishna Reddy who too was in the same
cell escaped with some injuries. Challa Ramkrishna Reddy along with his four brothers and
his mother filed a suit claiming Rs 10,00,000 as damages for the negligence of State of
Andhra Pradesh which cost the life of Challa Chinnappa Reddy.
In this case, the Andhra Pradesh High Court followed the ratio laid down in D.K.Basu
case. For the death of the person in judicial custody, Rs 1,44,000/- was awarded by the court
as damages against the State Government with interest at 6% per annum till the realization
from the date of the suit. The plea that the prisoner was put in jail in exercise of sovereign
function and thus, State was under no obligation to pay compensation was rejected.

15. Chairman, Railway Board v. Chandrima Das31

Facts: In this case Mrs Chandrima Das, an advocate at the Calcutta High Court, had filed a
writ petition under article 226 of the Indian Constitution, wherein she claimed compensation,
along with several other reliefs, for a bangladeshi national, Hanuffa Khatoon, who was

30
AIR 2000 SC 2083
31
AIR 2000 SC 988

151
 subject to gang rape at Yatri Niwas of Howrah Station, Eastern Railways by many men
which also included employees of the railway department.
The Central Government was held vicariously liable to pay the compensation to the
victim. It was not an act committed by railway employees in discharge of functions delegated
to them as referable to sovereign powers of Government.
In this case, the Apex Court asked the railways to pay Rs 1000000 as compensation for
the infringement of right to life of the victim. The compensation was actually awarded by the
High Court of Calcutta as it was of the opinion that the rape was committed at the building
(Rail Yatri Niwas) belonging to the Raiways and was perpetrated by the Railway employees.

16. State of Maharashtra v. Christian Community Welfare Council of India32

Facts: this case dealt with police torture and death in police custody. Jaoinous Adam
Illamatti, resident of Nagpur, was forcibly taken out of his house and beaten up, both outside
his house and during his unlawful detention in lock up. The police subjected Jaoinous to such
inhuman torture that he ultimately succumbed to it in the custody. The police even assaulted,
molested and beat up wife of Jaoinous and even threatened her of the consequences of death.
A writ petition was filed in the Nagpur Bench of the High Court of Bombay and a prayer
was made by the wife of the deceased to pay Rs 10,00,000 as compensation to her by the
State and conduct a proper inquire into the matter. The High Court awarded Rs 150000 as
compensation to be paid to the widow. Subsequently in appeal, the Apex Court also directed
the State Government to pay Rs 1,50,000 to the widow of the deceased, by depositing the
same in the form of fixed deposit in a nationalized bank for five years and during that period
the widow could draw the interest of the deposit. The State Government was also entitled to
recover the compensation amount from the officials who were responsible for the occurrence
proportionately.

32
AIR 2004 SC 7

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 17. Suo Moto v. State Of Rajasthan33
Facts: This judgment concerned the incident of rape committed on a 47 years German lady
tourist in the city of Jodhpur by an auto rickshaw driver and his associate in the night
between 11th and 12th of May, 2005.
This judgment was sensitive from the point of victim justice. The judgment makes
independent mention of victimology and compensation. The opening statement of paragraph
19 of the judgment is that, “One of the principle objects of the Criminal Justice System is to
vindicate the Right to justice of unfortunate victim”. The judgment emphasized on the
importance of victim support services. It stated that, apart from physical protection, the
victim also needs financial, medical, psychological and social support and assistance. It talks
of creating an atmosphere where the victim can speak and be heard. The judgment rubbished
the argument that since the victim was a foreign national, was not entitled to any
compensation. The victim was entitled to be treated with dignity and protection of her person
as per Art 21 of the Constitution, even though she was not a citizen of the country. The
victim was awarded a compensation of Rs 300000 to be provided by the State Government.
Apart from this, the judgment laid importance on speedy disposal of cases, fast track courts,
camera trials, non disclosure of the identity of the victim. A very significant aspect of this
judgment is the sensitized responsiveness of the judiciary towards the cause of the victim
which caused the judiciary to take up the matter suo moto with the prime objective of
rendering justice to the victim apart from punishing the accused.

18. Thakkamalai v. State of Tamil Nadu34

Facts: In 2005, the High Court of Madras came up with a very encouraging and promising
judgment. In this case, Lakshmi was brought to the police station to see her husband in the
lock-up who was taken to the police station for an enquiry in connection with some missing
amount from an accident spot. It is alleged that in the police station she was threatened by the
police personnel to reveal the theft of money and she pleaded innocence. It is further alleged
that she was taken to a certain place by the Sub Inspector of Police, who, after removing her
gold and brass ornaments, forcibly raped her.

33
RLW 2005 (2) Raj 1385
34
2006CriLJ1997

153
 Invoking Article 226 of the Constitution, a writ petition was filed on behalf of
Thekkamalai and his wife Lakshmi to direct the first respondent to pay a fair and reasonable
amount as compensation to Lakshmi and Thekkamalai, to provide adequate and suitable
rehabilitative measures to them, to appoint a Special Public Prosecutor with the consent of
the Chairman of the Tamil Nadu Legal Aid Board for conducting the trial. The learned single
Judge, allowed the writ petition and directed the first respondent to pay interim compensation
Rs. 75,000/- to Thekkamalai and his wife Lakshmi, subject to the right of the State to realize
the said amount from the delinquent police personnel concerned, who abused their position
as the servants of the State Government, and irrespective of the result of their prosecution
before the criminal court. Learned single Judge further directed the first respondent to take
all necessary steps to provide the victims adequate and suitable rehabilitative measures.
Thekkamalai filed an appeal for the enhancement of the compensation on the ground that
he and his wife Lakshmi were entitled to just and reasonable compensation and the amount
awarded by the learned single Judge by way of interim compensation is meager and
inadequate. The appellate court in response felt that by enhancing the compensation from Rs.
75,000/- to Rs. 5,00,000/- the ends of justice would be served. The Court clarified that the
State was free to take steps to recover the compensation amount which was paid to the
victims from the concerned police officers in accordance with legal procedure. This was a
unique judgment where elements of compensation, rehabilitation as well as the option of
recovering the paid amount of compensation from the delinquent officer are all covered.

19. Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and
Allied Workers and Ors.35

Facts: In this case, the petitioner attempted to bring to light the extreme difficulties faced by the
sewage workers in Delhi. The writ petition was filed by the National Campaign for Dignity and
Rights of Sewerage and Allied Workers, engaged in the welfare of sewage worker, in the Delhi
High Court, highlighting the condition of sewage workers. Many such sewage workers had died
due to the unhealthy working conditions.

35
AIR 2011 SC (Supp) 828

154
 In this case, apart from settling the other issues, the Apex Court also answered the
question whether the High Court was justified in issuing interim directions for payment of
compensation to the families of the victims. It stated,
“The right to compensation is some palliative for the unlawful acts of instrumentalities
which act in the name of public interest and which present for their protection the powers of the
State as a shield...Therefore, the State must repair the damage done by its officers to the
petitioner's rights. It may have recourse against those officers."

20. Mehmood Nayyar Azam v. State of Chhattisgarh36

Facts: In this case, a doctor due to the humiliation that he suffered in custody, sought public law
remedy for grant of compensation.
An Ayurvedic Doctor and a social activist was engaged in raising agitations and
spreading awareness against exploitation of weaker and marginalized sections of the society.
Such activities were unfavorable for people like “powerful coal mafia, trade union leaders, police
officers and other persons” who had ‘vested interest’ in the mining area. As a result the powerful
class threatened the doctor of serious consequences and pressurized him so that he would refrain
from engaging himself in such activities. However, the petitioner refused to succumb to their
pressure. When the efforts to arrest his activities failed, attempt was made to charge him for
some criminal offences. For this purpose, various provisions like Section 110/116 of the
Criminal Procedure Code, Section 420, 427 and 379 of the Indian Penal Code were invoked.
Subsequently he was also charged for theft of electricity under section 379 of the Indian Penal
Code and was taken in custody. While he was in custody he was victim of extreme torture and
gross violation of human rights and the basic right to live with dignity.
A complaint was submitted to the National Human Rights Commission by the petitioner.
The Superintendant of Police, District Koria was asked to submit a report by National Human
Rights Commission. Since the second respondent did not respond the Commission again asked
him to look into the grievances and take the necessary action. However, in absence of any action
being taken by the respondent or the police, the petitioner invoked the extraordinary jurisdiction
of the High Court of Judicature at Bilaspur, Chhattisgarh. In the petition he prayed for punishing
the respondent Nos. 4, 5 and 7 on the ground of violation of human rights which caused his

36
AIR 2012 SC 2573

155
fundamental right under Article 21 of the Constitution to live with dignity to be violated. In the
Writ Petition, he prayed for grant of compensation of Rs. 10 lakhs.
The Apex Court after having realized the extreme humiliation and tortured suffered by
the appellant finally stated that Rs.5.00 lacks was to be granted as compensation to the appellant
by the State. It also stated that the compensation amount could be recovered from the responsible
officers from their salary by the State”.

22. Sabana Khatun v. The State of West Bengal & Ors37

Facts: In this case, writ jurisdiction of the Calcutta High Court was invoked by a victim of acid attack
to claim compensation for the injuries suffered by her, referring to the judgment of the Apex Court in
Laxmi v. Union of India38. The victim was severely burnt both internally and externally since the
person with whom she had a love affair and his family members had forcefully poured acid in her
mouth and due to which she was hospitalized for eighteen days. Subsequently, she had informed the
Chief Secretary, government of West Bengal about the incident, praying for grant of compensation
due to the injuries suffered by her. But as there was no response from the government she took the
step to invoke the writ jurisdiction of the High Court.
The Learned Council for the petition referred to the Apex Court judgment in Laxmi v.
Union of India and said that the victim was “entitled to a minimum of compensation of Rs. 3
lakhs from the State, that too within 15 days from the date of reporting the incident.” He stated
that lack of response from the State Government was violation of the order of the Supreme Court
and thus, it was necessary that the High Court intervened in this matter. However, the Council
for the State denying the intention of the State to disregard the order of the Highest Judicial
Authority, referred to the West Bengal Victim Compensation Scheme, 2012 which was in
operation in the State and contained provision concerning compensation to victims of acid attack.
However, he also clarified that after the judgment of the Apex Court the quantum of
compensation contained in the Scheme for such victims was due to be modified. He on various
grounds attempted to refuse the obligation of the state to pay the compensation directly to the
victim.
Referring to the relevant part of the judgment of the Supreme Court, the High Court
observed,
37
W.P. No. 34704 (w) of 2013
38
Writ Petition (Crl) 129 of 2006

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 “It is manifest from the observations of the Apex Court as above that the Apex Court was
grossly dissatisfied with the lack of uniformities in the “Victim Compensation Scheme” of the
different States Governments and the Union Territories and inadequacy of the amount of
compensation. The Apex Court held that the minimum compensation would be at least Rs. 3
lakhs as the after care and rehabilitation cost and directed out the said amount a sum of Rs.1
lakh to be paid to the Acid attacked victim within fifteen days of occurrence of such incident or
being brought to the notice of the State Government or Union Territories and the balance Rs. 2
lakhs positively be paid within two months. The Chief Secretaries of different State Governments
and the Administrator of the Union Territories were directed to ensure compliance.”
It also observed,
“On the question of binding effect of the said order of the Apex Court so far as the State
Government and Union Territories are concerned, there cannot be any scope of debate that
same is not only binding on them, but if there is any non-compliance that would entail serious
legal consequences against the concerned authority”.
High Court finally directed the Chief Secretary of the State of West Bengal “to pay a total
sum of Rs. 3 lakhs to the writ petitioner, an acid attacked victim and out of the said amount a
sum of Rs. 1 lakh be paid within fifteen days from the date of communication of this order and
thereafter the balance amount be paid within two months thereafter as prescribed by the Hon’ble
Apex Court in its order passed in connection with Laxmi v. Union of India”.

5.3 VICTIM JUSTICE THROUGH ANALOGOUS LEGISLATIONS

i) The Probation of Offenders Act, 1958

1) Bhagwan And Anr. v. State of Haryana39

Facts: Petitioners Bhagwan and Satbir were convicted by Judicial Magistrate, 1st Class of
Gurgaon for offences under Sections 325/34 IPC. They were sentenced for rigorous

39
1986 CriLJ 1860

157
imprisonment of six months and fined Rs. 500. The Additional Sessions Judge, Gurgaon, on
appeal, upheld the conviction but allowed the petitioners to be released on probation after
executing personal and surety bonds for Rs. 2,000/- each to maintain peace and good behavior
for two years and thus allowed the petitioner the benefit of Section 4 of Probation of Offenders
Act. They were also ordered to pay Rs. 500 as compensation to the victim. Subsequently, this
criminal revision was filed by the petitioners.

The court in this case made certain observations on the compensation and fine that a
person is required to pay when given the benefit of Probation of Offenders Act. It said, “Section
5, Probation of Offenders Act, expressly empowers a Court to grant compensation to the victim.
The grant of compensation cannot be equated with imposition of fine. Even when a person is
released on probation, he has, to execute a bond to keep the peace and to be of good behaviour
and in case he does not comply with the conditions of the bond, he has to serve the sentence
imposed upon him.” Explaining the difference between fine and compensation, it stated,

“Fine is a sum of money fixed as penalty for an offence or a pecuniary penalty for an offence.
...Fine thus is a punishment. Compensation on the other hand, though a punishment, is its
separate and distinct form and is retributive. Even in probation ' the element of imprisonment, in
case of violation of any condition of the order, is to be found. There is no such penalty for the
default of payment of compensation”.

The Court further said, "Unlike in the case of fine, the person who defaults in the payment
of compensation cannot be sent to jail. Section 5 of the Act, which provides for compensation,
directs that any civil court trying the case for damages shall take into account the amount paid
to the victim of the crime.”

Finally while concluding the judgment, the Court opined that in the particular case, there
was no practical difficulty for realizing the compensation, since the fine which was already
deposited by the petitioners as per directions of the trial court had been converted into
compensation and ultimately dismissed the revision as it found no merit in the same.

158
 2) Son v. State of Uttarakhand40

Facts: In this case an FIR was lodged by the son of the victim who was injured by Sonu and
Surajmal who came to the house of the injured Suresh and hit him with things like gandasa and
sticks, which caused grievous injury to Suresh. Suresh was actually witness against Surajmal in a
criminal case which was the cause of the enmity. Due to the noise created when others came at
the spot, Sonu and Surajmal fled away.
The trial court framed charges under section 307, 506, 504, 323, 324, 326 IPC. The trial
acquitted the appellant of almost all the charges except under section 326 IPC. It directed the
appellant to undergo seven years rigorous imprisonment and pay a fine of Rs 10000.

The High Court of Uttarakhand while hearing the appeal paid immense importance to
the opinion of Mr. V.D. Bisen, learned Amicus Curiae for the appellant and Mr. S.K.
Chaudhary, Addl. GA for the State. Mr. V.D. Bisen, opined, “in view of the observations made
by the trial court that appellant is a young man having three children and also having
responsibility of three minor children of his pre deceased brother and in view of the fact that
appellant has no criminal antecedents to his credit, therefore, he should be enlarged on
probation for two year by giving benefit of the Probation of Offenders Act, 1958.” Addl. GA
for the State submitted, “in view of the fact that appellant was not having any criminal
antecedent, therefore, benefit of S. 4 of the Probation of Offenders Act may be extended to
appellant, however, amount of fine of Rs. 10,000/-, as imposed by the trial court, should be
enhanced and should be directed to be paid, as compensation to the injured, as provided u/s.
5 of the Probation of Offenders Act read with S. 357 (3) CrPC.”. Finally the High Court
favoured the opinion of granting the benefit of probation to the appellant for two years upon
furnishing “a personal bond and the affidavit to the satisfaction of ACJM, Roorkee stating
therein that for the next two year, he will maintain high moral and good conduct and shall not
indulge in any criminal activity”.

The Court also clarified that the fine was enhanced from Rs 10000 to Rs 20000 and was
to be deposited at the court of ACJM, Roorkee. It also stated that the fine amount should be

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paid to the victim i.e. the injured, “as compensation, as provided u/s. 5 of the Probation of
Offenders Act read with S. 357 (3) Cr.P.C.”.

3) Sarvjeet v State of Uttar Pradesh and another41

Facts: It was a criminal revision challenging the judgment of the trial court and its
subsequent appeal wherein both the cases the accused was convicted under sections 498 A,
323, 506 Indian Penal Code along with section 4 Dowry Prohibition Act and accordingly
punished. The revisionist challenged the judgment by the trial court and in criminal appeal by
Special Judge, S.C./ S.T. Act, Faizabad on various grounds like delay in filing FIR, lack of
injury report, lack of examination of the investigating officer. The High Court countered all
the arguments placed by the counsel of the revisionist. The counsel also submitted, “the
offence relates to the year 1998 and after this incident victim has also re-married and both of
them are living separately, therefore, after such a long lapse of time it would not be in the
interest of justice to send the revisionist to jail to serve out his sentence and accordingly, it is
submitted that the benefit of first offender probation act be given to the revisionist”.

The Allahabad High Court said that there was no force in the revision application.
However, the court also opined, “Keeping in view the nature of offence, this Court is of the
considered opinion that the benefit of S. 4 of the Probation of Offenders Act, 1958 can be
extended to the revisionist. However, in order to meet the ends of justice, this Court also
think it desirable to award compensation to the victim i.e. PW-1 Parmila Devi u/s. 5 of the
Probation of Offenders Act. Accordingly, this revision deserves to be partly allowed”. Thus,
though the conviction of the conviction of the accused was upheld as was pronounced in the
judgment of the trial court and in subsequent appeal but the accused was allowed the benefit
of probation and was ordered to file a bond with two securities for maintaining peace and
good behaviour and be under supervision of a probation officer of two years. In order to
serve the ends of justice, the victim was allowed to be provided compensation of Rs 20000
under section 5 of the Probation of Offenders Act, 1958. The High also clarified that in case
the revisionist failed to comply with any of the conditions stipulated by the court, he would
be required to serve the sentence as per the judgments delivered in the trial court and in

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 appeal.

ii) The Motor Vehicles Act, 1988

1) D. Shanmukha Sundaramma v. D. Suneetha and Ors.42

Facts: This case dealt with claim of compensation by the mother and wife of the deceased, an
auto rickshaw driver, who lost his life in an accident that occurred due to the dashing of the
lorry against the auto rickshaw. The widow of the deceased claimed Rs 400000 as
compensation under Section 166 of the Motor Vehicles Act, 1988 for the death of the
deceased. A counter affidavit was filed by the mother of the deceased claiming that she was
equally entitled to the claim of compensation as she was dependant on her son and after his
death had no one to take her care. According to her the widow of the deceased who was a
home guard and stayed separately did not take care of her. In the opinion of the High Court,
since the widow was just twenty years of age, it was directed that the mother of the deceased
was to be paid Rs 50000 and the remaining balance to the widow.

However, the Supreme in this present appeal concerning the amount to be paid to the
mother of the deceased, altered the judgment considering the age of the widow and the
mother and other peculiar facts of the present case and decided, “it would be appropriate to
grant a sum of Rs. 1,25,000/- to the appellant and the balance to the claimant-wife i.e. the
widow of the deceased.”

2) A. Sridhar v United India Insurance Company Limited and another43

Facts: In this case, the motor cycle met with an accident while the appellant was riding it
together with a rider. The accident took place due to the oil spilled on the road and the
appellant suffered grievous injury due to the accident. The Tribunal, while considering the
claim under section 166 of The Motor Vehicles Act, decided to award a sum of Rs 160000
together with 6% per annum as compensation to the claimant.

In the opinion of the High Court, there was no justification for the Tribunal to allow
42
(2009)3SCC787
43
(2011) 14 SCC 719

161
 the compensation under section 166 of the Act. It rather opined that the compensation
should have been paid under section 140 of the Act and the High Court subsequently
modified the compensation awarded to Rs 25000. The Apex Court while dismissing the
appeal opined that there was justification for the High Court to invoke the beneficial
legislation and direct the Insurance Company to pay the limited amount of compensation to
the person injured due to the motor cycle accident on the basis of "no fault liability", as the
accident was caused due to the use of motor vehicle and which resulted in causing grievous
injuries to the claimant.

3) Mariappan v. Metropolitan Transport Corporation (Chennai Division-1),

44
represented by its Managing Director, Chennai

Facts: According to the facts of the case, the petitioner was riding his bicycle carefully
when the bus of the Metropolitan Transport Corporation, rashly and negligently driven by
its driver knocked down the petitioner, due to which the petitioner received grievous injury.
The injuries resulted in permanent disability.
The appellant under section 166 of the Motor Vehicles Act, 1988 claimed a sum of Rs
Rs.3,50,000 as compensation for injuries suffered before the Motor Accident Claims
Tribunal (Additional District and Sessions Judge, Fast Track Court II, City Civil Court),
Chennai. The tribunal awarded a total of Rs.1,14,474/- as the reasonable amount of
compensation after considering various factors like the injury, medical expense, the victim’s
monthly income, loss of income etc. The Madras High Court in this appeal after reassessing
the compensation granted under various heads, modified the award and enhanced the
compensation to Rs to Rs.1,39,500/-.

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 iii) Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989

1) Anjalam v Superintendent of Police, Perambalur District and others45

Facts: The wife of the deceased in a writ petition filed by her before the learned single Judge
claimed that her husband Pandian was subject to torture and died because of respondents 3 to
6 (police officials) who acted in connivance with some individuals. In the writ petition was
filed by her she prayed to issue a Writ of Mandamus, “directing the respondents 1 and 2 to
launch prosecution against the respondents 3 to 6 under appropriate provisions of the Indian
Penal Code, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and
other laws, award suitable compensation to the appellant herein for the death of her husband,
Pandian.”
This case originally relates to a complaint lodged for the loss of a minor daughter aged
around 16years. In the course of investigating this case, the deceased was enquired about facts
by the police and was subject to torture and finally his dead body was found hanging from a
tree.

The wife of the deceased filed a writ challenging the dismissal of the earlier writ which
was filed . The counsel for the appellant stated, “it is a clear case of police excesses at the
instance of the complainant, who is a upper caste Hindu whereas the deceased is a man hailing
from under-privileged community.”

The Madras High Court directed the Government of Tamil Nadu, to pay a
compensation of Rs.5,00,000 to the wife of the deceased within six weeks from the date of
receipt of a copy of this judgment. Further, after making the said payment, the first
respondent/Government of Tamil Nadu was to recover Rs.2,00,000 from the salary of the third
respondent and Rs.1,00,000 each from the salary of respondents 4 and 6. Since the 5th
respondent was no more in service then, the second respondent/Government of Tamil Nadu
was allowed the liberty to recover Rs.1,00,000 from him in the any manner as per the
provisions of law.

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 In this case, the Madras High Court made a very significant observation. It observed,
“God made his creations without any disparity. But, man, an intelligent creation of Almighty, has
drawn various lines of separation between the very mankind, by caste, creed, religion, sect, belief
and even by political interests, etc. etc. Not stopped with that, communal hatred - a menace to the
society - has been injected into the young minds, nurtured and developed by greedy persons with
self-interest and in spite of best advices tendered and sacrifices made by great men of this
country and various reformative measures initiated to wipe out the menace from our society,
there seem to be no improvement in the condition as the communal hatred in one form or other
and in one manner or other is reaching its new heights every day. It is high time to break these
lines of separation lest we will not be forgiven by our future generations.

2) Shahjad Kha v State of Madhya Pradesh46

Facts: In this case, the victim in order to respond to nature’s call went to a nala. While she was
on her way back, the accused pulled her hand with bad intention and asked her “to go behind the
bushes" with him. The victim refused the proposal and ran away from the spot. She narrated the
incident to her husband, mother-in-law and brother-in-law and subsequently an FIR was lodged.

After due investigation a charge sheet was filed and the case was committed to a Special
Judge under SC/ST (Prevention of Atrocities) Act, Bhopal.

The Madhya Pradesh High Court in this case observed, “Under such circumstances, the
testimony of the prosecutrix which was duly corroborated by the timely lodged FIR appears to be
believa ble and the trial Court has rightly believed the testimony of the prosecutrix and therefore,
it is proved beyond doubt that the appellant has committed an offence u/s. 354 of IPC. The trial
Court has rightly convicted the appellant for the offence u/s. 354 of IPC.”

The trial Court had sentenced the accused to 2 months rigorous imprisonment and a fine
of Rs.500. The High Court maintained the conviction under section 354 IPC but reduced the
period of sentence to a period for which the accused had already remained in custody and
increased the fine amount from Rs 500 to Rs 5000. The court also ordered, “If fine is deposited

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then, a sum of Rs.4,000/- be provided to the husband of the prosecutrix Keshari S/o Devilal, R/o
village Bhairavpura, District Bhopal, by way of compensation”.

iv) The Juvenile Justice (Care and Protection of Children) Act, 2000

1) Salil Bali v. Union of India (UOI) and Anr.47

Facts: In this landmark judgment delivered by Altamas Kabir, C.J.I., Surinder Singh
Nijjar and Jasti Chelameswar, JJ. seven writ petitions and one transferred case was dealt with.
The petitions which had common prayers prayed for declaring the Juvenile Justice (Care and
Protection of Children) Act, 2000 ultra virus the constitution, bring the said Act in conformity
with the Constitutional provisions and also required the Union of India to bring changes in the
Act so that it is in tune with the provisions of the United Nations Standard Minimum Rules for
administration of juvenile justice. The petition also contained prayer to set up a panel of criminal
psychologists who would determine by using clinical methods whether juvenile was involved in
the gang rape that occurred in Delhi on 16th of December, 2012. It also prayed that juveniles
accused of offences like rape, murder should not be given a separate treatment and tried under
special but should be tried under normal law like the adult offenders, further permitting no
protection to persons under eighteen years of age. Investigative agencies should be permitted to
maintain record of such offenders in order to detect repeat offender. Such other prayers were also
made in connection with the involvement of the juvenile in the Delhi Gang Rape case.

The Apex Court in its judgment opined that the incident of 16th of December, 2012 in
Delhi was “an aberration rather than Rule” and stated that the Act was very much conformity
with the provisions laid down in the Constitution of India. It also was in recognition and
realization of the international principles and rules governing juvenile justice. The declaration of
eighteen years of age as the decisive age of maturity was as per the Article 1 of Convention of
Rights of Child.

The Higher Judiciary of India has significantly played a very dynamic role in realizing
and recognizing the plight and rights of the victims in the criminal justice system either by

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applying Section 357 CrPC or by rendering justice through Constitutional remedy or in some
other case through the adoption and application of various analogous legislations. The
compassionate and pro active role of the Judiciary towards the cause of the neglected, weaker
and victimized categories of the masses is witnessed in the judgments rendered by the Higher
Judiciary in response to various writ and PIL applications since 1980s. The landmark judgment
rendered by the Supreme Court in M.C.Mehta v. State of Tamil Nadu and Others48 is just an
illustrious example of the same. In this case, the Supreme Court realized that the malady of child
labour was deep rooted and far spread. With the purpose of curing this malice and protecting the
juveniles from being socially, economically and physically victimized by falling prey to poverty,
illiteracy and ignorance it gave some directions. Among various directions, it stated that an
employer should be under obligation to pay Rs 20000 as compensation for employing every
child in contravention of Child Labour (Prohibition and Regulation) Act, 1986. The
compensation amount was to be deposited in a fund called Child Labour Rehabilitation-cum-
Welfare Fund. The state was also under obligation to assure an alternative employment for an
adult member of the family of the child who was employed in a factory, mine or any other
hazardous employment. Therefore, the object of the Court was providing adequate compensation
to the young victims of child labour and the rehabilitation of not only the respective children but
their families as well. This sensitized approach of the judiciary got reflected in various other
judgments as well which was a catalytic force in propelling the victim justice movement in India.
Further, the Apex Court has made some noteworthy remarks while dealing with cases concerning
victims of displacement due to developmental projects like construction of dams and aiming at
their rehabilitation. In B.D.Sharma V. Union of India49, it was observed that the high projected
benefits from the dam should not be considered as an explanation to deny the people who are
ousted from their land their basic fundamental right and their rehabilitated should be at the
earliest. In N.D. Jayal and Another v. Union of India50 the Supreme Court opined that the
guarantee of fundamental human rights is encompassed within the definition of right to
development. Thus, ‘the rights of the oustees to be resettled’ have been recognized by the courts

48
(1996) 6 SCC 756. This case resulted from a PIL filed by M.C.Mehta describing the plight of the children
employed in the Sivakasi match making industry.
49
1992 Supp (3) SCC 93
50
(2004) 9 SCC 362.

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and ‘right to rehabilitation has been read into Article 21’. However, inspite of such encouraging
remarks, the take of Supreme Court in case of Sardar Sarovar Dam has been very disheartening.
5.4 Sum up:
1. The Indian judicial structure has responded with empathy to the demands and needs of
the victims.
2. The proactive role of the judiciary is very encouraging for the development of
victimological jurisprudence in the country.
3. Art 21 of the Indian Constitution can be read as the germinating point of victim justice.
4. Judiciary has mostly attempted to render justice to the victims through the application of
Sec 357 CrPC.
5. As observed by the Higher Judiciary, since section 357 CrPC is a very potent weapon for
rendering victim justice, it should be applied more regularly.
6. Though the scope of section 357(1) CrPC is limited but the scope of section 357(3) is
very broad.
7. The term compensation has been in many case used synonymously for restitution
erroneously,
8. Judiciary has reiterated repeatedly that factors like nature of crime, injury suffered,
capacity of the accused, justness of the claim etc should be considered while deciding on
the claim and/ or grant of compensation.
9. It also states that though compensation should be granted to assure justice to the victim
but at the same time it should be reasonable from the point of the accused and the victim.
10. The authority to grant or award compensation under section 357 is not ancillary to other
sentences but is in addition to them.
11. Judiciary has mostly directed the fine amount on being deposited with the authority to be
converted into compensation amount.
12. The judgments mostly provide that in case the convicted person is unable to provide the
fine amount, then he shall be subject to a sentence in case of his default. But similar
directions are not provided in case of default to provide the compensation or the
restitution amount.
13. Constitutional remedy available to the victims is a clear reflection of the welfare activity
of the state.

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14. The higher judiciary in many cases has come up with very promising schemes for
compensating the victims.
15. However there is no uniform scale that has been adhered to by the judiciary while
granting compensation.
16. The application of analogous legislations for the benefit of the victims has widened the
scope of victim justice.
17. The judiciary has always considered the heirs and dependents of the victims as
beneficiaries in respect of grant of compensation amount. Thus, the definitional scope of
the term victim as incorporated in the CrPC post 2008 has been in the consideration of
the judiciary prior to that.
18. The influence of the 1985 United Nations declaration on the rights of the victims is
clearly reflected in the approach of the judiciary.
19. Compensation is the most frequently adopted mode of rehabilitating the victim. The other
modes of rehabilitation and victim assistance are comparatively sparsely adopted.
20. The judiciary had already implemented the need to make the accused liable for
contributing towards the compensation amount from those who have committed the
offence while in public service much prior to the legislative incorporation since the recent
criminal law amendments.
21. The executive and the legislature have reacted late to give effect to the recommendations
of the judiciary on matters of victim justice.
22. The judiciary has attempted to bring out that the compensation schemes adopted by the
states are not uniform and the initiative of the judiciary to bring about uniformity is very
encouraging.

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