1.

Introduction

The purpose of the criminal justice is to protect the rights of the individuals, society and state
from the criminals by punishing the accused for violating the law. The violation of rights, the
invasion of dignity, the actual losses incurred by him/her do not constitute matters of concern
for anyone, but role is limited to reporting the crime to officials who decide whether to
prosecute the case, how to proceed, and what type of punishment to recommend Strange
but true, justice fails to redress the wrong perpetrated by the offender on the victim; on
the contrary, it aggravates the injustice by focusing solely on the offender, side-lining the
victims.1

Victimology related jurisprudence has debated extensively on where to place the ball of
responsibility - whether the responsibility of the State ends merely by registering a case,
conducting investigation, initiating prosecution and sentencing an accused or whether apart from
pursuing these steps, the State has a further responsibility to the victim. However, it remains that
victims of a crime, including her/his kith and kin carry a legitimate expectation that the State will
‘catch and punish’ the guilty and compensate the aggrieved. Even in the event when the
machinery of justice fails to identify the accused or falls short in collecting and presenting
requisite evidence to ensure appropriate sentencing of the guilty, the duty of compensation
remains.2

The jurisprudence under Article 21 has gained momentum since the turn of the century and now
extends to rehabilitating the victim or her/his family. However, the scope for remedy to the
victim in terms of compensation was earlier limited under public law by way of writ jurisdiction.
Therefore, there was a need to introduce a specific provision for providing compensation to the
victim irrespective of the result of criminal prosecution. Accordingly, Section 357-A was
introduced in the Code of Criminal Procedure, 1973.3

1
Victim compensation scheme in India available at
https://www.ijlsi.com/wp-content/uploads/Victim-Compensation-Scheme-in-India.pdf
2
Revisiting Victim Compensation in India.avaialable at
http://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-CBE1DF4F8726.2-criminal.pdf
3
Ibid.

1
2. History and Development of Compensation as a Criminal Remedy

Restitution has been employed as a punitive measure throughout history. Compensation was then
incorporated as a victim’s right in civil law as opposed to a remedy in the case of a crime. Thus,
criminal law was rid of the burden of compensation to rehabilitate victims since the position of
law was that criminal justice was either reformative or retributive for the purpose of the offender,
as opposed to being rehabilitative with regard to the victim.4

However, a scheme based on restitution by the offender to the victim is particularly problematic
because it is imperative for the offender to be apprehended and convicted, and it is also
necessary for the victim to be able to afford the resources for the same. Such a scheme also gives
rise to a probability where the victim is denied compensation since the offender is a debtor and
cannot raise money in prison. Thus, the best method seems to be to have a State Fund from
which the victims are immediately compensated after the crime. If and when the offender is
convicted, he may be ordered by the court to restitute a certain amount to the State. 5

The very first trace of restitution in Indian law can be found in sub-clause (1)(b) of Section 545
in the Code of Criminal Procedure of 1898, which provided that courts may direct: “payment to
any person of compensation for any loss or injury caused by the offence, when substantial
compensation is, in the opinion of the court, recoverable by such person in a civil court”.

The Law Commission Report and Section 357 of the CRPC The 41st Report of the Law
Commission of India was submitted in 1969. This discussed Section 545 of the Code of Criminal
Procedure of 1898 extensively. The report stated that the significance of the recoverability of
compensation should be enforceable in a civil court akin to the public remedy available to tort.
The gravity of compensability was earlier demarcated by the use of the word “substantial” which
excluded cases where nominal charges are recoverable.6

4
VICTIM COMPENSATION IN INDIA – AN ANALYSIS
Author: Vasundhara Saxena available at:https://journal.indianlegalsolution.com/2020/07/15/victim-compensation-
in-india-an-analysis-vasundhara-saxena last visited on 07-03-2024.
5
Ibid.
6
Compensation of victim of crime in India available at:
https://blog.ipleaders.in/compensation-victim-crime-india/ last visited on 08-03-2024.

2
However, the Law Commission debated against the demarcation since the discretion to apply the
provision in cases was used scarcely by the courts in directing compensation for victims. The
CRPC consequently incorporated the changes proposed in the said Bill of 1970. In the Statement
of Object and Reasons it stated that Section 357 was “intended to provide relief to the poorer
sections of the community” whereas, the amended CRPC empowered the court to order payment
of compensation by the accused to the victims of crimes “to a larger extent” than was previously
permissible under the Code.7

3. Victim Compensation: Definition, Nature & Scope

Victimology is not confined now in studying the penal couple relation only. The compensation to
victim is also gaining importance. A person sustaining injuries or his dependants in case of his
death may be provided compensation. In certain primitive societies and in medieval period the
compensation was given to the victim or his family by the offender or the clan to which he
belonged. The wrong doer may not be competent enough to provide the compensation and so the
need arises of the state responsibility to pay compensation.8

Compensation: Meaning and Definition

Ubi jus, ibi remedium is the basic principle in the tort that states that there is no wrong without a
remedy and the rule of law requires that wrongs should not remain unredressed. The
compensation constitutes an important remedial measure in tort law and the principles relating to
the determination of damages and compensation in tort are well established. There are several
dimensions to the issue of payment of damages and compensation in the law relating to torts
includes the measure of damages, quantum of damages, assessment of damages, intention of the
wrongdoer, proximity of the cause etc.9

Under the Tort law, in order to claim compensation the tort must be of such a nature as will
entitle the plaintiff to recover damages. Where, therefore, the case is of a nature which

7
Dr. Justice G.Jayachandran on Victim Compensation: Judicial Approach towards Compensatory
Jurisprudence available at: https://nja.gov.in/Concluded_Programmes/2022-23/P-1341_PPTs/3.Victim
%20compensation%20scheme%20-Session%20V.pdf
8
Ibid.
9
Mundrathi, S., Law on Compensation- To Victims of Crime and Abuse of Power 182, Deep and Deep
Publications, New Delhi, (2007) p.9.

3
a) does not give rise to a right to the plaintiff to recover damages, or to the existence of the
liability of the defendant, as where the defendant has committed no wrong, whether a breach of
contract or a tort, or

b) does not occasion any loss or damage, or no cause of action accrues to the plaintiff, as when
he himself is at fault or the damages are too remote, or he has failed to mitigate his damages
Compensation cannot be granted.

Compensation, as distinct from damages is used in relation to a wrongful act, which cause the
injury. Literally, compensation means the money which is given to compensate for loss or injury,
whole purpose of compensation is to make good the losses sustained by the victim of crime or by
the legal representative of the deceased or who has suffered of pecuniary loss or non-pecuniary
loss. Compensation to the victims of crime means something given in recompense i.e. equivalent
rendered. It is to be note that the whole purpose of compensation is to make good the loss
sustained by the victim or legal representative of the deceased. Generally the term compensation
limits itself to monetary compensation which is calculated on the basis of two head i.e. pecuniary
loss and non-pecuniary loss.10

In criminal-victim relationships, compensation concerns in making amends to him; or, perhaps, it

is simply compensation for the damage or injury caused by a crime against him. As commonly
understood it carries with it the idea of making whole, or giving an equivalent, to one party and
has no relation to any advantage to the other. It is counterbalancing of the victim’s sufferings and
loss that result from victimization. It is a sign of responsibility a noncriminal purpose and end. 11

10
Randhawa, G.S., Victimology and Compensatory Jurisprudence 166-167, Central Law Publications, Allahabad
(2011).
11
https://victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crime-victims/crime-victimcompensation,
accessed on 07-03-2024.

4
4. Legislative provision regarding compensation

The court has very limited discretion under Section 357 (1): it can give compensation only out of
the fine if imposed on the offender, quantum of compensation is limited to the fine levied,
compensation to the victim under this section can be allowed by the court if it is of the opinion
that the compensation is recoverable by such person in a civil suit. The court has however, much
more discretion under sub-section (3) of Section 357: though only if fine does not form a part of
the sentence.12

1.Power of court to pay compensation to victim

Section 357(1)13 When a Court imposes a sentence of fine or a sentence (including a sentence of
death) of which fine forms a part, the Court may, when passing judgment order the whole or any
part of the fine recovered to be applied-

(a)in defraying the expenses properly incurred in the prosecution;

(b) in the payment to any person of compensation for any loss or injury caused by the offence,
when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court;

(c)when any person is convicted of any offence for having caused the death of another person or
of having abetted the commission of such an offence, in paying compensation to the persons who
are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the
person sentenced for the loss resulting to them from such death;

(d) when any person is convicted of any offence which includes theft, criminal
misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or
retained, or of having voluntarily assisted in disposing of, stolen property knowing or having
reason to believe the same to be stolen in compensating any bona fide purchaser of such property

12
Mohammad Ashraf,”Status of Crime-Victims in the Indian Criminal Justice”’ KULR (2010) Vol. 17, p.160.
13
THE CODE OF CRIMINAL PROCEDURE ACT, 1973.

5
for the loss of the same if such property is restored to the possession of the person entitled
thereto.

2. Compensation to person arrested groundlessly: Accordingly, Section 35814 Whenever any

person causes a police officer to arrest another person, if it appears to the Magistrate by whom
the case is heard that there was no sufficient ground of causing such arrest, the Magistrate may
award such compensation, not exceeding one thousand rupees, to be paid by the person so
causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the
Magistrate thinks fit.

3. Section 359. Order to pay costs in non-cognizable cases

Whenever any complaint of a non-cognizable offence is made to a Court, the Court, if it convicts
the accused, may, in addition to the penalty imposed upon him, order him to pay to the
complainant, in whole or in pan, the cost incurred by him in the prosecution, and may further
order that in default of payment, the accused shall suffer simple imprisonment for a period not
exceeding thirty days and such costs may include any expenses incurred in respect of process-
fees witnesses and pleader's fees which the Court may consider reasonable.

4. Recent Amendment in CRPC- After piece 357 of the telling Act, Section 357A has been
embedded duty for Victim Compensation Scheme: the increasing concern for compensation to
victims of crime Section-357A was inserted by the CrPC (Amendment) Act,2008 (w.e.f.31
Dec.2009) on the recommendation of the Malimath Committee Report on 'Reforms of Criminal
Justice System,2008'. It also inserted Section-2(wa), Section-24(8) proviso & Section-372
proviso.

14
THE CODE OF CRIMINAL PROCEDURE ACT ,1973.

6
4.1 Central Victim Compensation Fund scheme(CVCF)- Under Section 357-A of the CRPC,
all States in coordination with the Central Government, were required to formulate a Victim
Compensation Scheme for the State, and the discretion was left upon the State and District Legal
Services Authority (‘DLSA’) to decide the quantum of the punishment.15

Step 1 Making an application before the District/State Legal Service Authority

An application can be made for temporary or final compensation. It can be filed by the
Victims or their dependents or the SHO of the area.

 The application must be submitted along with a copy of the First Information Report (FIR),
medical report, death certificate, if available, copy of judgment/ recommendation of court if
the trial is over, to the State or District Legal Services Authority

Step 2 The scrutiny stage.

District Legal Service Authority of every state first verify the content of the claim. Specific loss,
injury, rehabilitation is taken into consideration.

Step 3 Deciding the quantum of compensation to be given to victim of crime

The quantum of compensation to be granted is decided on the following factors,

 The gravity of the offence and the loss suffered by the victim.

 Medical expenditure incurred during treatment.

 Loss of livelihood as a result of injury or trauma.

15
N.V Paranjape., Criminology & Penology with Victimology (15th ed.) Central Law Publications, p.680.

7
 Whether the crime was a single isolated event (Example Theft) or whether it took place over
an extended period of time (Example multiple times, Rape with a woman who has been
locked in a house)

 Whether the victim became pregnant as a result of such offence.

 In the case of death, the age of deceased, his monthly income, the number of dependents, life
expectancy, future promotional/growth prospects etc.

 Or any other factor which the Legal Service Authority might deem fit.

 S. 357 B
 The compensation payable by the State Government under section 357A shall be in addition
to the payment of fine to the victim under section 326A, section 376AB, section 376D,
section 376DA and section 376DB of the Indian Penal Code.
 S. 357 C

Treatment of victims All hospitals, public or private, whether run by the Central Government,
the State Government, local bodies or any other person, shall immediately, provide the first-aid
or medical treatment, free of cost, to the victims of any offence covered under section 326A, 376,
376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or section 376E of the Indian Penal Code,
and shall immediately inform the police of such incident.

2.Probation of Offender Act 1958:

Under section 5(1) of the probation of offender act contains provision regarding compensatory
claim. As stated in this section, the court directs the release of a wrongdoer under section 3 or
section 4 of the Act, if it is deemed fit, it may further direct the accused to further pay to the
victim the amount, as the court deems fit and the cost of the procedure.16

3. Compensation under Motor Vehicle Act 1988:

16
Paranjape, N.V., Criminology & Penology with Victimology (15th ed.) Central Law Publications, p.680.

8
In case of death or injury in case of vehicle accident or their representatives can claim
compensation from the wrongdoer under section 5 of motor vehicle act 1988. These cases can be
tried under trial court.17

5. Compensatory Relief to Victims – Judicial Trend

The contribution of judiciary to redress the claims of victims of crime is no less significant. The
higher courts have played a dominant role in assuring compensatory justice to the victims of
crime. While awarding such compensatory relief, they have exercised due care and caution to
ensure that people’s faith in judicial process is not shattered and the victims protective rights are
not denied to them. Some of the landmark judgments of the Supreme Court ensuring restorative
justice to victims of crime reflect the growing concern of judiciary to protect the rights of
victims.18

(i) Rudal Shah v. State of Bihar19, - a person is entitled to compensation for the loss or injury
caused by the offence, and it includes the wife, husband, parent and children of the deceased
victim.

(ii) Sarwan Singh v. State of Punjab20, enumerated the factors which the courts should take into
consideration while ordering award of compensation to victim of crime. These factors include
capacity of the accused to pay, nature of the offence and the nature of injury suffered by the
victim as also the overall effect of crime on the victim’s family and social life and emotional or
financial loss caused to him/her. The Court ruled that the quantum of compensation must be
reasonable, depending the facts, circumstances and justness of victim’s claim. The accused must
be given reasonable time for payment of compensation and if necessary, it may be ordered to be
paid in instatements.
17
Ibid.
18
Id. at 680-81.
19
AIR 1983 SC 1086.
20
AIR 2000 SC 362.

9
(iii) D.K. Basu v. State of West Bengal 21, the Supreme Court, inter alia made the following
observation: “The monetary and pecuniary compensation is an appropriate and indeed an
effective and sometimes perhaps the only suitable remedy for the redressal of the established
infringement of the fundamental right to life of a citizen by the public servants. The state is
vicariously liable to which the defence of sovereign immunity is not available and the citizen
must receive the amount of compensation from the state; which shall have the right to be
indemnified from the wrongdoer.”

(iv) In the case of SAHELI22 (a women social activist organisation) the Apex Court directed the
Delhi Administration to pay Rs. 75,000/- as exemplary compensation to the mother of a nine
year old boy who died due to beating by police officer while extracting information from him
regarding the offence.

(v) Hari Krishan and State of Haryana v. Sikhbir Singh 23 referring to provisions for
compensation, the Hon'ble Supreme Court observed: - This power was intended to do something
to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure
of responding appropriately to crime as well of reconciling the victim with the offender. It is, to
some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice
system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the
ends of justice in a better way."

6. Difference between compensation under Section 357A and Section 357,

CRPC

1.Under Section 357 A, compensation is payable out of funds created by the State Government
and under Section 357, it is payable out of fine recovered from convict.

2. Under Section 357 A, compensation is payable even if offender is not traced or identified but
under Section 357, it is payable only upon conviction of offender.

21
AIR 1997 SC 610.
22
SAHELI V. Commissioner of Police, Delhi, AIR 1990 SC 513.
23
AIR 1998 SC 2127.

10
3. Under Section 357 A, compensation is payable in addition to compensation awarded under
Section 357 and under Section 357, there is no such provision.

4. Section 357 A is a mandatory provision for compensation whereas Section 357 is

discretionary.

5. Under Section 357 A, order for compensation is made by District Legal Service Authority or
State Legal Service Authority and under Section 357 by the Court.

6. Section 357 A empowers District Legal Service Authority or State Legal Service Authority to
make Order for interim relief and under Section 357, there is no such provision.

7.Under Section 357 A, no criteria is specified for dependents of victim entitled to compensation
under Section 357 only dependents or heirs of victim who are entitled under Fatal Accidents Act
can claim compensation.

6. Conclusion

Each wrongdoing portrays the disappointment on the obligation of the country to perceive,
shield and satisfy the common freedoms of its subjects. Not handiest that each and every
wrongdoing, confirmations disappointment with respect to country, to save guideline and
request, accord and serenity inside the general public, to safeguard presence and property of the
individuals and to apply its position to stifle wrongdoing and rebuff guilty parties. Wrongdoing
as often as possible involves considerable mischief to people and now not only emblematic harm
to the social request. It isn't to be overlooked that if the casualty picks not, at this point to helpful
with the C.J.S., the whole framework will fall. Henceforth there's a squeezing need to smooth out
the C.J.S. through honestly comprising of casualties' privileges in the framework, specifically
appropriate to money related pay.

It must be made to be had whether or no longer conviction of the denounced take area or whether
he's secured or preliminary has started or now not. In truth the commitment of legal executive
with perceives to introducing pay for infringement of his common liberties is in actuality
extensive. With perceive to sec 357 additionally the legal executive through its creative
translation had endeavored to bring to the table solution for the person in question. It is presently

11
obligatory that court need to decide in each criminal case the need as to granting remuneration.
Since casualty ought to get some comfort by period in the middle of remuneration gave
underneath the plan. It isn't essential that conviction of the miscreant must be recorded.

Victim compensation is now an important side of giving justice to the victims. Beside the
traditional punishment system reparation to victim has reduced the accused leaning approach in
justice system but in the case of India despite some emergent developments in this direction,
there are multiple defects and problem in this area for that coordinated effort from all the
organization is required in the justice system. After the synchronized work efforts, lucidity and
liability in every part of criminal justice system is another important need to make the successful
implementation of pre-existing provisions possible.

7. Bibliography

 Books:
 Paranjape, N.V., Criminology & Penology with Victimology (15th ed.) Central Law
Publications, p.680.
 Randhawa G.S, Victimology and Compensatory Jurisprudence 166-167, Central Law
Publications, Allahabad (2011).
 S. Mundrathi, Law on Compensation- To Victims of Crime and Abuse of Power 182, Deep
and Deep Publications, New Delhi, (2007).
 Bare Act:
 THE CODE OF CRIMINAL PROCEDURE ACT ,1973.
 Website:
 Compensation of victim of crime in India available at:
https://blog.ipleaders.in/compensation-victim-crime-india.
 Mohammad Ashraf “Status of Crime-Victims in the Indian Criminal Justice” KULR (2010)
Vol. 17.pdf.
 VICTIM COMPENSATION IN INDIA – AN ANALYSIS Author: Vasundhara Saxena
available at: https://journal.indianlegalsolution.com/2020/07/15/victim-compensation-in-
india-an-analysis-vasundhara-saxena.

12
 Victim compensation scheme in India available at
https://www.ijlsi.com/wp-content/uploads/Victim-Compensation-Scheme-in-India.pdf .
 Revisiting Victim Compensation in India.avaialable at
http://docs.manupatra.in/newsline/articles/Upload/6F5E12E5-2A56-49A9-BF1B-
CBE1DF4F8726.2-criminal.pdf.

13