Victim Compensation Scheme More Beneficial To Rape Survivor Can Be Applied Retrospectively: Punjab & Haryana High Court

The Punjab & Haryana High Court has said that the Victim Assistance Scheme of UT Chandigarh, 2018 can be applied retrospectively, which means that the rape victim can be given benefit of compensation under the scheme even if the judgement of conviction was passed prior to its enforcement.

In the present case, the plea to apply the scheme retrospectively was filed by a rape victim who was impregnated by the assault and gave birth to a child. The judge noted that the Scheme of 2018 was drafted just one year prior to the date of the pronouncement of the judgment of conviction.

Justice Harpreet Singh Brar said, "As a welfare State, a retrospective effect must given to such legislations as they aim to grant compensation to victims, especially those who have suffered heinous crimes and sustained profound and lasting physical, psychological, and social impact. Therefore, given the gravity of the offence committed against the petitioners, ends of justice would be met if the present case is governed by the Scheme of 2018 as it is more beneficial than its predecessor. Therefore, the question framed above is answered in the positive."

Perusing the 2018 Scheme, the Court noted that, it nowhere "indicates the nature of its applicability to be prospective or retrospective."

"Moreover, the eligibility of the petitioners to seek compensation under either of the two Schemes is also not in dispute, as the petitioners are victims of the offence of rape. However, the Scheme of 2012 provides a compensation of Rs. 2 Lakh to Rs. 3 Lakh, the Scheme of 2018 has increased the limit significantly to Rs. 5 Lakh to Rs. 10 Lakh," it added.

The bench highlighted that the Scheme of 2012 did not have a specific provision of providing compensation to a victim, impregnated on account of rape, while the Scheme of 2018 provides an additional compensation of Rs. 3 Lakh to Rs. 4 Lakh in such cases.

These observations were made while hearing the plea of a rape victim and her child, under Section 482 CrPC seeking directions to compensate them under the Union Territory of Chandigarh Victim Assistance Scheme, 2018.

The FIR was filed by the victim under Sections 376(2), 506, 498-A of IPC in 2016 and the rape accused was sentenced to undergo rigorous imprisonment with fine under Sections 376(f) & (n), 506 of IPC.

Counsel for the petitioner submitted that it is concluded in the conviction order passed by the trial Court that the victim was subjected to rape and sexual assault at the hands of the convict. Further, the medical evidence as well as the DNA test of the convict proves beyond reasonable doubt that he is the father of the child.

Therefore, the counsel said that the petitioners ought to be granted compensation, to the tune of Rs. 5,00,000 to Rs. 10,00,000, for rape plus Rs. 3,00,000 to Rs. 4,00,000 for pregnancy on account of rape as mentioned in the schedule appended with the Scheme of 2018.

However, the victim was only granted a meagre amount of Rs. 1,00,000 by the trial Court out of the total fine imposed upon the convict, he added.

Opposing the plea, the State counsel submitted that the accused was convicted in the year 2017 whereas the Scheme of 2018 was brought into force in 2019. Hence, the case of the petitioners would be covered by the Union Territory of Chandigarh Victim Assistance Scheme, 2012.

After hearing the submissions, the Court considered the question, "Would a victim of rape be entitled to compensation under the Victim Compensation Scheme if the judgment of conviction was rendered prior to the enforcement of the said Scheme?."

It noted that as per the sentencing order compensation to the victim was granted under Section 357 Cr.P.C only as Rs. 1,00,000 and out of the total fine of Rs. 1,05,000, imposed upon the convict, under Section 376(f) and(n) IPC, was ordered to be paid to her as compensation.

"Evidently, no direction was issued to the District Legal Services Authority (DLSA), Chandigarh to award compensation to the petitioners in accordance with the Victim Assistance Scheme," added the judge.

Justice Brar opined that the trial Court has erred in not realising the gravity of the situation and referring the matter to DLSA for grant of adequate compensation and said that the victim and the child cannot be allowed to suffer for the fault of the trial Court. 

Referring to the definition of the "victim" under the 2018 scheme which states that the meaning is same as 2 (wa) under the CrPC, the Court noted that, "A perusal of Section 2(wa) of the Cr.P.C. would indicate that the term victim would include not only the person who has suffered a loss or injury by the acts/omissions of the offender, but also her legal guardians and legal heirs."

The Court observed that the Victim Assistance Scheme must be viewed as a social welfare measure. It is settled law that the application of such progressive legislations should be interpreted to be retrospective in nature.

 Answering the question considered by the Court in positive, it said that the compensation henceforth granted would ensure that petitioner can provide her daughter with a stable and nurturing environment, free from the external stressors that might otherwise impede her upbringing. 

"This support would help foster her well- being, enabling her to pursue a future filled with opportunity and care. It is trite law that the welfare of the child is paramount and the Courts, while exercising its parens patirae role, must act in a manner to best realize it," it added.

In the light of the above, the Court directed the District Legal Service Authority, Chandigarh to consider the case of the petitioners under the Scheme of 2018 within 4 weeks from the receipt of a certified copy of the order.

Mr. Amit Bhanot, Advocate for the petitioners.

Mr. Sumit Jain, Addl.A.P.P., U.T. Chandigarh. 

Title: VXXXXXX   & Anr. v. State of U.T. Chandigarh