Victim Restitution- A Vanishing Point In Criminology

The traditional methods of criminology have been unsuccessful in furthering the aims of criminal justice. A shift from retribution to restitution began in the mid-1960s and gained momentum in the following decades. "Victim Restitution in Criminal Law Process: A Procedural Analysis" sums up the historical perspective of the concept of restitution in the following words: "Far from being a novel approach to sentencing, restitution has been employed as a punitive sanction throughout history. 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 primary purpose of such restitution was not to compensate the victim, but to protect the offender from violent retaliation by the victim or the community."^[2] The jurisprudence that evolved over time created segregation between the civil and the criminal law and stereotyped compensation into a civil remedy within the domain of civil courts. However, in recent times, restitution, rehabilitation and assistance to the victims have witnessed a steady growth.

Restitution, compensation and damages are the mechanisms devised by the Courts and the Legislature to empower the Compensatory jurisprudence. Restitution is a court ordered payment from a convicted offender, whereas, compensation is a government program that pays the victim where the compensation is not fully available or recoverable from the perpetrator. According to, Duties of frontline professionals towards securing justice for victims: a manual , in the event that the offender cannot be traced or identified, the victim may make an application to the DLSA/SLSA for compensation and adequate compensation must be granted within two months. Restitution is ordered by a criminal court after the offender has been found guilty. Civil damages are ordered in a lawsuit in a civil court. Victims of crime can obtain both restitution and civil damages.

A victim of crime is one who triggers the criminal process. A "victim" according to S.2 (wa) of Code of Criminal Procedure (Cr.P.C) is defined as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression victim includes his or her guardian or legal heir.

The Delhi High Court, in the landmark judgement of Karan v. NCT of Delhi^[3] has devised a formula of Victim Impact Report (VIR) to determine the quantum of compensation to the victim in conjunction with the paying capacity of the accused. The VIR is to be filed by the Delhi State Legal Services Authority (DSLSA) in every criminal case after conducting a summary inquiry. After the conviction of the accused, the trial Court shall direct the accused to file the affidavit of his assets and income within 10 days. Thereafter, a summary inquiry is conducted to ascertain the impact of crime on the victim, the expenses incurred on prosecution as well as the paying capacity of the accused. If the accused does not have the capacity to pay the compensation or the compensation awarded against the accused is not adequate for the rehabilitation of the victim, the Court shall invoke s.357A of the Cr.P.C to recommend the case to DSLSA to award compensation from the Victim Compensation Fund under the Delhi Victims Compensation Scheme, 2018.

This format of Victim Impact Report (VIR) has been developed as against the Victim Impact Statement (VIS), which is an instrument of victim participation that allows victims to directly address the court in its own words as to how the crime impacted them. It allows the victim to come to terms with the offence and makes the offender perceive and realize the impact of crime on the victims. In countries like the United States, the judges may use this information to determine an offender's sentence; a parole board may use this to decide whether to grant parole and what conditions to impose in releasing an offender. Fortunately, VIS which has also been suggested by the Committee for Reforms in Criminal Law is not widely recognized in India, as it does not focus upon victim rehabilitation rather diverts the attention more towards the accused. It also adds to the workload of already overburdened courts, whereas, VIR shifts the burden upon the DSLSA of conducting the inquiry and submitting the report. Another major drawback of VIS is that it fosters different punishment for the same offence based on the impact it has on the victim.

Although section 357 of Cr.P.C provides the Courts with the power to award compensation to the victim both, out of the sentence of fine and exclusive of the sentence of fine imposed on the accused the application of the same has been very limited. In Hari Singh v. Sukhbir Singh & Ors^[4]. the Supreme Court lamented the failure of Courts in awarding compensation to the victims in terms of S.357 (1) of the Cr.P.C. The Court recommended to all courts to exercise the power available under S.357 liberally, to meet the ends of justice. Cut to the judgement of Ankush Shivaji Gaikwad v. State of Maharashtra^[5] in 2013, where although the Court held that the lower courts must apply judicial mind and record reasons for passing, or not passing orders pertaining to the use of S.357- effectively making its application mandatory, did not grant compensation to the victim. There are several constraints that the lower courts face while applying S.357 as it allows them to issue orders for only such compensation as otherwise recoverable in a civil court. According to the 41^st report of The Law Commission of India, the significance of the requirement that compensation should be recoverable in Civil Court is that the act which constitutes the offence in question should also be a tort. Secondly, the compensation can only be paid out of the amount of fine recovered. It can in no case exceed the amount of fine. Thirdly, there is no scheme of interim compensation under S.357, as S.357 (2) clearly declares that if the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed ,or, if an appeal be presented, before the decision of the appeal. Fourthly, compensation can be ordered only if the accused is convicted and sentenced, although to tackle that S.357A was introduced by amendment in 2009, where the court will direct the State to pay the compensation in cases of acquittal or discharge or where the compensation by the accused is not adequate for such rehabilitation.

Justice R.L. Narasimham, member of 42^nd Law Commission recommended deletion of S.545 (Now S.357 in the Code of 1973) of Cr.P.C and insertion of a new section in Indian Penal code as he found the section unsatisfactory because compensation can be given only in money to the injured party and there is no provision for direct reparation for harm caused. Secondly, the procedure involved in the section is circuitous, dilatory, expensive, and caused much harassment to the injured complainant. Lastly, it does not cover cases of those accused persons who are not able to pay the fine.

However, the contribution of the landmark verdict of Karan v. NCT of Delhi ^[6]and Kirti v. Oriental Insurance Company Ltd.^[7] to the compensatory jurisprudence will be unparalleled. In the case of Kirti v. Oriental Insurance Company Ltd^[8], Justice N.V. Ramana while disposing of an appeal arising out of a motor accident compensation claim summarized his opinion regarding the calculation of notional income for homemakers and the grant of future prospects with respect to them for the purposes of compensation. "It is a recognition of the multitude of women who are engaged in this activity, whether by choice or as or as a result of social/ cultural norms. It signals to the society at large that the law and the Courts of the Land believe in the value of labor, services and sacrifices of homemakers. It is an acceptance of the idea that these activities contribute in a very real way to the economic condition of the family, the economy of the nation, regardless of the fact that it may have been traditionally excluded from economic analyses."

In another progressive move in Suresh v. State of Haryana^[9], the Supreme Court interpreted Section 357 of Cr.P.C, to include interim compensation also. The Court observed that, "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. 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."

A crime is deemed to be an offence against the society and the de-humanized system that imparts justice reduces the victim to any other piece of evidence. According to, Duties of frontline professionals towards securing justice for victims: a manual^[10], in Hobbesian terminology, the Leviathan fails the victims twice: first in failing to secure their life, liberty and property from the transgressions of another and in the second instance failing to fully and completely restore the victims to their rightful position. It is pertinent that the jurisprudence ameliorates the balance between the rights of the victim and the deterrence that the society seeks to create because criminal justice system is meant for doing justice to all - the accused, the society and the victim.