Section 357A- Court's Role Is Only Recommendatory, Court Cannot Fix Any Quantum Of Compensation To Victim: Jharkhand High Court

A Single Bench of Justice Ananda Sen has held that:

• The role of the Court is recommendatory in nature and it cannot fix any quantum of victim compensation nor can direct the authority to make payment of the same to the victim while exercising jurisdiction under Section 357A of CrPC.
• Court can recommend payment of victim compensation by way of interim measure at any stage of the proceeding, including at the stage of considering bail application.
• When a person is an accused and the Court is not sure as to whether he has committed the offence or not, in that situation, the accused cannot be saddled with the liability to pay compensation.

The observation was made while deciding a criminal miscellaneous petition filed against an order of Judicial Commissioner which granted bail to the Petitioners-accused but directed them to pay a sum of Rs.1 lakh collectively, in favour of the informant/victim, as ad-interim victim compensation.

Arguments

The petitioners had argued that the Judicial Commissioner has committed a grave error in granting victim compensation at the stage of grant of bail. It was submitted that at the stage of bail, the Petitioners are merely an accused. As there is a presumption of innocence in their favour, they could not have been directed to compensate the informant/victim.

The State on the other hand submitted that the Court below has got jurisdiction to direct payment of victim compensation at any stage of a criminal proceeding. It was submitted that even independent of Section 357A of the Code, the Court has power to grant any relief and pass any order as a condition of bail.

Findings

In its order, the Single Judge considered the following questions:

Whether Court can direct an accused to pay victim compensation at the time of granting bail or at any stage prior to conclusion of the trial?

The Single Judge noted that when a person is an accused and the Court is not sure as to whether he has committed the offence or not, in that situation, when there is uncertainty, the accused cannot be saddled with the liability to pay compensation.

It held,

"A person, who has not committed the crime, by no stretch of imagination, can be directed to pay compensation. At a stage of hearing of bail plea, the guilt of the accused is not proved or established. What is established at that stage, is the identity of the victim and the fact that the said victim has suffered some loss and needs rehabilitation. Thus, at that stage, the victim qualifies to be compensated, but, the said compensation cannot be from the accused, whose guilt is yet to be proved."

The Bench was of the opinion that compensation is ordered to be paid by a Court only after a finding is arrived that the person, directed to pay compensation, has caused any injury by committing a wrong or has committed a breach of a legal obligation, be it statutory or contractual.

"To direct an accused to pay any compensation or victim compensation under Section 357A of the Code at the stage of bail by terming it as a condition of bail also may amount to prejudging the guilt of an accused and such a course of action runs completely contrary to the basic principle of criminal jurisprudence, i.e., presumption of innocence until proven guilty," the Bench held.

It added,

"When a First Information Report is lodged with an allegation made against any person, to have committed the crime, the said allegation is a mere accusation. Making accusation against a person does not make him guilty of an offence. The accusation against the said person has to be established beyond all reasonable doubts. Till the accusation/allegation is not established beyond all reasonable doubts, the person remains as an accused. The presumption remains in favour of the accused that he is innocent. Only when the Court holds the accused guilty of the crime, then only there is confirmation that the accused is guilty of the offence. This is done only after conclusion of the trial, when the judgment is pronounced."

Payment of compensation by State

The Court made it clear that there is no embargo in paying victim compensation even at the stage of consideration of bail of the accused, which is an interlocutory phase. However, it is the State, who has to compensate the victim.

Reliance was placed on Suresh & Anr. v. State of Haryana, (2015) 2 SCC 227.

The order stated,

"At a stage of hearing of bail plea, the guilt of the accused is not proved or established. What is established at that stage, is the identity of the victim and the fact that the said victim has suffered some loss and needs rehabilitation. Thus, at that stage, the victim qualifies to be compensated, but, the said compensation cannot be from the accused, whose guilt is yet to be proved."

Payment of compensation is independent of Trial

The Bench further made it clear that payment of compensation to victim has nothing to do with the accused or with the trial and it is not contingent upon conviction of an accused.

It held that in terms of Section 357A of the Code, even if the accused is not identified or he is discharged or acquitted, the victim is entitled to get compensation from the fund, which is created by the State.

"The State being the paramount protector of the life and liberty of each and every citizen, has some responsibility towards them. Even if the accused is acquitted or discharged or even if the accused is not identified, it is the duty of the State to protect its citizens and to rehabilitate them if they suffer loss and injury arising out of a crime," the Court held.

Whether the Court can fix the quantum of victim compensation under Section 357A of CrPC?

The Single Judge has held that while exercising jurisdiction under Section 357A of the Code, the role of the Court is recommendatory in nature and it cannot fix any quantum of victim compensation nor can direct the authority to make payment of the same to the victim.

"The Court is not vested with the power under Section 357A of the Code to quantify the amount of compensation, rather that power is vested with the Legal Services Authority. This is because the provision provides for holding an enquiry to assess and ascertain the loss sustained, injury caused and the extent and nature of rehabilitation required. This enquiry cannot be done by the Court, as per the Code," the Bench opined.

It added that the Court has the power only to recommend to the District or State Legal Service Authority to pay compensation, without quantifying the amount, which has to be quantified and assessed adequately by the State or District Legal Services Authority after an enquiry.

"A direction of the Court to make payment of victim compensation, quantifying the amount, may in certain cases result in payment of inadequate compensation also, as the same would be without an appropriate enquiry. It is needless to say that the provision of the Act provides for conducting an enquiry before payment of victim compensation.

Directly quantifying the amount by a Court and giving direction to make payment of victim compensation, according to me, will go against the provision of Section 357A itself. This means the statutory provision of enquiry is being done away with."

Objective of 2008 Amendment Act

Section 357A was inserted in CrPC by the Code of Criminal Procedure (Amendment) Act, 2008.

The Single Judge noted that the Amendment Act was introduced with the objective of recognizing and securing rights of victim under CrPC.

"Hence it can be said that the Amending Act is an instance of a rights-based approach and it guarantees certain rights to the victims of crime, including the right to receive compensation and it also provides for an inclusive approach which builds up on the idea of access to justice for all.

The provision is victim centric and has nothing to do with the offender. The spotlight is on the victim only. This is made clear by the provision itself as it entitles an eligible victim to receive compensation thereunder even in cases where the offender is not identified, or even if the accused is acquitted or discharged. The object of victim compensation is also to create mechanisms for rehabilitation measures by way of medical and financial aid to certain victims," the Judge opined.

Features of Section 357A

In its order, the Bench has gone on to identify the following important features of Section 357A:

• A scheme has to be prepared for providing funds for the purpose of payment of compensation.
• Compensation has to be paid to the victim or his/her dependents who have suffered loss or injury as a result of the crime and requires rehabilitation.
• Court has to make recommendation for payment of compensation to the District Legal Services Authority or the State Legal Services Authority.
• On such recommendation from the Court, the concerned Legal Services Authority shall decide the quantum of compensation to be awarded under the scheme.
• The victim or his/her dependent can make application to the State or District Legal Services Authority for award of compensation.
• The District or State Legal Services Authority has to make an enquiry and only on completion of enquiry has to award adequate compensation.
• The State or the District Legal Services Authority, to alleviate the suffering of the victim, may grant interim relief to him/her.

"From the provision of law i.e. Section 357A of the Code it is clear that there has to be a fund, so created for the purpose of paying compensation. The fund is created to enable payment of compensation from the said fund. The intention of the legislature is clear that the amount of compensation to be paid to the victim or the dependent of the victim has to be from the fund itself. No alternative source has been provided by the statute," the Court held.

It added that the victim or the dependent of the victim, whom the victim compensation has to be paid under the aforesaid section, must suffer loss or injury as a result of the crime and should require rehabilitation.

The order stated,

"From simple reading of the aforesaid provision, it is clear that not only the victim has to suffer loss or injury as a result of the crime, but, must also require rehabilitation. The word 'and' is used with a purpose. This conjunctive word joins the two conditions, i.e., (i) suffering loss or injury; and (ii) requires rehabilitation. Both these two conditions must coexist, to qualify for grant of compensation…if no loss or injury is caused, there is no question of rehabilitation."

Whether submission made by the accused to the effect that they are ready to pay victim compensation can be a ground to grant the relief?

In the instant case, the Petitioner-accused had submitted before the Judicial Commissioner, Ranchi, that they are ready to pay victim compensation in lieu of bail. Thus, the question before the Court was whether this is a valid ground for grant of bail?

Answering this in the negative, the Single Judge held,

"payment of compensation or victim compensation cannot be a consideration or a ground for grant of bail. Even if an accused volunteers to pay compensation, the same cannot be of any consideration at all. The said submission would be a submission not related to the consideration on which a bail is granted."

The Judge opined that an accused, who is in custody or who is apprehending arrest, and is praying for bail, can make any submission before the Court, as for him his only concern is that he should be granted bail, whatever may be the conditions imposed.

"The Court should not be swayed by those submissions made by the parties, rather should evaluate and base his order on correct perspective. It is the Court, who has to decide, whether those submissions are within the parameters defined by law. If payment of compensation becomes a consideration for grant of bail, not only the same will be against the provision of law, but will also have a catastrophic effect upon the criminal justice administration."

Case Title: Sumit Kumar Shaw & Ors. v. State of Jharkhand & Anr.

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