Breaking- Section 357A(4) Cr.P.C Is A Substantive Provision; Victims Entitled To Compensation Even For Crimes That Occurred Prior To Its Enactment: Kerala High Court

Importantly, the Bench of Justice Bechu Kurian Thomas ruled,

"By giving the benefit to victims under Section 357A(4) Cr.P.C., for crimes that occurred prior to 31.12.2009, the statutory provision is not given retrospective effect, and instead a prospective benefit is given based on an antecedent fact."

[NOTE: The Code of Criminal Procedure Amendment Act, 2008, apart from introducing a definition for the term 'victim' in Section 2(wa), inserted a new provision as Section 357A to the Cr.P.C and this provision is related to concept of rehabilitation of the victim.

While the compensation payable under Section 357 Cr.P.C. is punitive in nature, the compensation awarded under Section 357A is rehabilitative.

The amended provisions do not mention anywhere that the amendment is prospective or even retrospective in character.]

The question before the Court

Would the victim, of a crime that occurred prior to 31.12.2009, be entitled to claim compensation under Section 357A (4) of the Cr. P.C i.e., is the provision retrospective or prospective in its application?

In the quest to ascertain whether Section 357A(4) Cr.P.C applies to offences that occurred prior to 31.12.2009, the Court had to identify whether the provision is substantive or procedural (we will under this in the coming paragraphs).

Section 357A(4) Cr.P.C reads,

Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.

Facts in brief

Respondents 2 to 4 are the legal heirs of one late Sri.Sivadas who died in a motor vehicle accident that took place on 26-03-2008.

Though a crime was registered by the Police, the accused could not be identified or traced and the trial has not taken place.

In 2013, the legal heirs applied to the District Legal Services Authority, Alappuzha, seeking compensation from the State under Section 357A(4) CrPC.

An enquiry, as contemplated under Section 357A(5) Cr.P.C, was conducted and the enquiry report was submitted on 12-09-2013 which considered the circumstances, and concuded that an amount of Rs.3,03,000/- was sufficient compensation that could be awarded to the dependents of late Sri.Sivadas.

On the above basis, the State of Kerala was directed to pay an amount of Rs.3,03,000/- to the dependents of late Sivadas under Section 357A(5) of the Cr.P.C. The State of Kerala challenged this Order before the Kerala HC.

Controversy before the Court and the Arguments put forth

The Senior Government Pleader argued that the direction to the State to pay compensation to the dependents of a victim under Section 357A(4)&(5) of the Cr.P.C., for a crime that occurred on 26-03-2008, relying upon an amended provision, brought into effect only on 31.12.2009, and based on an application of the year 2013, is wholly unfair and contrary to the statutory prescription.

It was also contended by the State that Section 357A(4) Cr.P.C couldn't be given a retrospective operation as the financial implication of such an interpretation would be so enormous upon the Government, that it will crumble the economic planning of the State.

On the other hand, the counsel for respondents 2 to 4 (dependents), argued that the provision applies to past occurrences of crime also and that the concept of Section 357A is akin to a joint tortfeasor under the civil law, and the legislative attempt by bringing in Section 357A Cr.P.C. was to make State also a joint tortfeasor, in a limited manner.

It was also argued that the concept of rehabilitation of the victim is not a new right that was brought in by Section 357A Cr.P.C., but it is a right that was always inherent under Article 21 of the Constitution of India.

Court's Observations

The Court, in its Judgment observed that the Criminal jurisprudence, has always been accused centric, however, "with the advent of the philosophy of victim compensation, with its avowed purpose not to award damages analogous to those in cases of tortious liability, but to give solace, by way of compensation out of the public purse, for the injury sustained, whether the offender had been brought to trial or not, a new stakeholder, in the criminal law, was ushered in."

The Court also noted that the State has a humanitarian responsibility to assist crime victims and also that the assistance is provided because of the social conscience of its citizens and as a symbolic act of compassion.

Importantly, the Court held that under Section 357A(4) Cr.P.C, a 'victim' is one who suffers any loss or injury by reason of the act or omission of another in which the offender has not been traced or identified and against whom a trial has not taken place as such an interpretation alone would make Section 357A(4) Cr.P.C., workable, and have meaning.

Section 357A(4) Cr.P.C: Substantive or Procedural provision?

The Court noted that while substantive law creates, defines or regulate rights, the procedural law creates the method for enforcing or having redressal for the rights so created.

It may be noted that the Apex Court in the matter of Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and Others v. N.C Budharaj and Others [(2001) 2 SCC 721] had held that

"Substantive law is that part of law, which creates, defines and regulates rights in contrast to what is called adjective or remedial law which provides a method of enforcing rights".

In this backdrop, the court said,

"A reading of Sections 357A(1)(4)&(5) Cr.P.C., will make it explicit that the said sub-clauses create a right upon the victim to obtain an award of compensation on satisfying the conditions stipulated therein."

Observing that Section 357A(1)(4)&(5) Cr.P.C., creates a right upon a victim in cases where the offender is not traced or identified and the trial has not taken place, to obtain compensation, from the State Government for the rehabilitation of the victim, the Court said,

"It has created and defined rights for a victim, and a duty upon the State Government to pay compensation. Thus Section 357A(1)(4)&(5) Cr.P.C., is a substantive law and not procedural law."

Notably, the Court said,

"When an application is made by a victim of a crime that occurred prior to the coming into force of Section 357A(4) Cr.P.C., a prospective benefit is given, taking into reckoning an antecedent fact. Adopting such an interpretation does not make the statute or the provision retrospective in operation. It only confers prospective benefits, in certain cases, to even antecedent facts. The statute will remain prospective in application but will draw life from a past event also."

"Merely because a prospective benefit under a remedial statutory provision is measured by or dependent on antecedent facts, it does not necessarily make the provision retrospective in operation", the Court further added.

Summary

(i) The provisions in Section 357A(1)(4)&(5) Cr.P.C are substantive in character.

(ii) The victims under Section 357A(4) of the Cr.P.C. are entitled to claim compensation for incidents that occurred even prior to the coming into force of the said provision.

(iii) By giving the benefit to victims under Section 357A(4) Cr.P.C., for crimes that occurred prior to 31.12.2009, the statutory provision is not given retrospective effect, and instead a prospective benefit is given based on an antecedent fact.

Case title - District Collector Alappuzha v. District Legal Service Authority, Alappuzha and others [WP(C).No.7250 OF 2014(E)]

Click Here To Download Order

Read Order