Minor Rape Victims Entitled To Compensation For Incidents Prior To Introduction Of S.357A CrPC If Claim Petition Filed Before 2009: Rajasthan HC

Rajasthan High Court has clarified recently that minor rape victims can avail the benefit of the amended provision in Section 357A of CrPC, even if the alleged incident occurred before the amendment in 2009.

While partly allowing the writ petition filed by the father of the victim girl who was subjected to rape at the age of two years, the court ordered that the State must compensate the victim with an amount of Rs 3,00,000/- as stipulated in the Rajasthan Victim Compensation Scheme, 2011, framed pursuant to the enactment of Section 357A CrPC.

The single judge bench of Justice Anoop Kumar Dhand further added that the general mandamus issued in this case would only apply to all those victims who presented a claim in this regard to the competent authorities prior to the amendment in 2009.

“…This general mandamus would be applicable only in those cases where the applications were submitted prior to amendment of Section 357A Cr.P.C. The Chief Secretary of the Government of Rajasthan and the Member Secretary, RSLSA is directed to look into the matter and do the needful at earliest for disbursement of amount of compensation without any further delay to such minor victims of rape”, the court said.

While adjudicating the matter, the court also observed that the crime of rape against a minor is 'dehumanising' and 'an affront to human dignity' which necessitates the award of compensation as a 'solace'. Since the amended Section 357A CrPC entrusts the State and District Legal Services Authorities with the implementation of the remedial measures, the bench sitting at Jaipur also asked the authorities to ensure compliance with the Rajasthan Victim Compensation Scheme, 2011 and the 2012 guidelines issued by the Rajasthan State Legal Services Authority itself within a period of three months.

It is pertinent to note that Section 357A CrPC does not mention anything about the benefits of the provision being prospective or retrospective. The Rajasthan Victim Compensation Scheme, 2011 was framed pursuant to the powers conferred upon the state governments by the amended provisions of Section 357 A CrPC.

While agreeing with the views taken by the Kerala and Karnataka High Courts in similar cases, the court observed that the statutory provision, i.e., Section 357 A CrPC, though considered as a substantive provision of law that cannot have retrospective application, giving compensation to the victim for a crime before the amendment, based on the said amended provision, can only be considered as a 'prospective' application of the same based on an 'antecedent fact'.

“The Hon'ble Supreme Court in the case of Mohd. Haroon & Ors. Vs. Union of India & Ors. [Writ Petition (Criminal) No.155/2013] has held that no compensation can be adequate but since the State has failed in protecting such serious violation of fundamental rights, the State is duty bound to provide compensation, which may help victim's rehabilitation. The Hon'ble Supreme Court also noted that “the obligation of the State does not extinguish on payment of compensation, rehabilitation of victim is also of paramount importance…”, the single-judge bench further noted.

The court also extensively discussed the similar conclusions drawn by different High Courts in District Collector v. District Legal Service Authority & Ors. (2020), Achiya Bibi v. State of West Bengal & Ors. (2019) and Vakalpudi Venkanna v. The State of Karnataka & Ors. (2022). In these cases, it was observed that merely because a prospective benefit is given after considering an antecedent fact, that alone wouldn't make a provision retrospective in operation. In District Collector v. DLSA & Ors., Kerala High Court opined that the rule against retrospectivity of substantive provisions of law such as Section 357A CrPC that conclusively defines the rights of the victim is not violated by giving a prospective benefit under the said provision, since Section 357 A CrPC should also be considered as a remedial statutory provision.

The court was also considerate about the mental trauma that a victim has to undergo after being subjected to a crime of such gravity. The court also added that the concept of granting compensation to the victims of heinous crimes is not a new concept either, after citing various case laws. This was the scenario even before the addition of Section 357 A CrPC based on the 154th report submitted by the Law Commission of India, the court reminded.

The primary question that arose before the bench in this case was whether the minor was entitled to get the compensation envisaged under the 2011 scheme framed pursuant to Section 357 A CrPC and whether it could be applied prospectively or retrospectively. After the incident of rape in 2004, the trial court had convicted the accused for offences under Section 365 and Section 376 of IPC in 2005.

In 2005 itself, the petitioner had submitted an application before the Jaipur District Collector for compensation to the tune of Rs 3,00,000/-. However, except Rs 10,000/- that the victim received from the Chief Minister's Relief Fund, no action was taken on the representation made to the District Collector. Hence the petitioner's father approached the High Court via this writ petition.

Advocate Naina Saraf appeared for the petitioner.

Case Title: G.K v. State of Rajasthan Through Chief Secretary & Ors.

Case No: S.B. Civil Writ Petition No. 3753/2006

Citation: 2024 LiveLaw (Raj) 2

Click Here To Read/ Download Order