KeLSA Empowered To Grant Compensation Under Victim Compensation Scheme Without Court Recommendation Except Under POCSO: Kerala High Court

The Kerala High Court on Wednesday held that the Kerala State Legal Services Authority (KeLSA) is empowered to grant compensation to victims under the amended Kerala Victim Compensation Scheme without a court recommendation.  

Justice Kauser Edappagath added that the amended scheme however did not extend this benefit to minor victims under the POCSO Act, who still require Special Court recommendation to seek compensation. 

"Even though till 20/2/2021, DLSA/KeLSA did not have the jurisdiction to grant compensation to the victim suo moto or on application made by or on behalf of the victim except for the claim under sub-section (4) of Section 357A of Cr.P.C., after the introduction of Chapter II in the Scheme, the compensation, interim as well as final, as the case may be, can be awarded by the DLSA/KeLSA either suo moto or on application by the victim or the jurisdictional Station House Officer in respect of the offences covered by the said Chapter...the minor victims under POCSO Act cannot file an application directly to the DLSA/KeLSA seeking compensation. They can claim compensation only on the recommendation or direction from the Special Court."

The Court was hearing the petitions filed by two sexual assault victims, whose applications for victim compensation were rejected by the KeLSA. They had approached the Court, challenging KeLSA's decision.

The primary issue before the Court was whether KeLSA had the authority and jurisdiction to award compensation to victims under the Kerala Victim Compensation Scheme, 2017 (as amended in 2021) without a court recommendation.

The Court started by examining Section 357A of CrPC and Section 33(8) of the POCSO Act, which establish a duty upon the State to compensate victims of crime. It was noted that compensation can be awarded in two ways: on the recommendation of a court or on an application made by the victim or their dependents to the State Legal Services Authority (SLSA) or District Legal Services Authority (DLSA).

Therefore, it was found that while the Court can recommend compensation, victims can also directly apply to KeLSA/DLSA for compensation under specific circumstances.

Justice Edappagath pointed out that after the 2021 amendment to the Victim Compensation Scheme, Clause 14 was introduced, allowing victims or the police to file applications for compensation directly with DLSA/KeLSA. These authorities were also empowered to initiate action and award compensation based on such applications.

Further, in Abhishek v. State of Kerala (2020 (5) KLT 276), the Court had used its authority under Articles 226 and 227 to improve the POCSO Act to enhance victim support and streamline the compensation process, reflecting the court's commitment to victim rights. It issued 26 directions, including Direction No. 24, which instructed the State to enable KeLSA to efficiently disburse compensation to victims under the POCSO Act, as outlined in the Victim Compensation Scheme.

The Court then analysed the cases and found that both the cases fell under Section 376 of IPC, covered by Chapter II of the Amended Scheme. The DLSA had awarded compensation based on the amended provisions, but KeLSA had rejected the awards, claiming that compensation could only be granted upon court recommendation.

Thus, KeLSA's interpretation was declared erroneous. It was clarified that the amended provisions allowed DLSA/KeLSA to award compensation based on direct applications from victims, as long as the cases pertained to offences mentioned in Chapter II. The Court criticised KeLSA's stance and stated that without a court recommendation, DLSA could indeed award compensation in such cases.

The Single Bench also discussed the duties of various stakeholders and recognised the failure of some courts to award compensation to victims, despite statutory provisions mandating the same, and directed that both criminal courts and special courts handling POCSO cases should follow these provisions scrupulously. It also emphasised the role of the police in promptly sharing FIRs with KeLSA/DLSA in cases related to specific offences, enabling them to initiate verification for interim compensation.

Additionally, the Court highlighted the inadequacy of the existing compensation scheme for victims of sexual abuse under the POCSO Act and directed the State Government to formulate a comprehensive Victim Compensation Scheme specifically for such victims or to amend the existing scheme accordingly.

As such, the Court set aside the impugned orders, directed the disbursement of awarded compensation, and issued various directives to ensure the effective implementation of victim compensation schemes, both for immediate relief and rehabilitation of victims of crime.

All courts and stakeholders were directed to strictly adhere to the compensation provisions, and for the integration of the police IT system with KeLSA to streamline the sharing of FIRs. The Court stressed the collective obligation of all parties to ensure that victims' rights are upheld and justice is effectively served.

The petitions were accordingly disposed of.

Advocate P Ramesh appeared for the petitioners while Additional Public Prosecutor P Narayanan appeared for the State in the matter. Advocate Roshen D Alexander represented KeLSA and Advocate K.K Dheerendrakrishnan appeared as amicus curiae in the case. 

Case Title: X v. State of Kerala 

Citation: 2023 LiveLaw (Ker) 411

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