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CHAPTER 6
JUDICIAL TRENDS IN COMPENSATION
INTRODUCTION
The basic aim of administration of justice is to do justice as per law. It is through
effective jurisprudence, the rights of victims can be protected otherwise, the victim remains
meek viewer in the whole process of justice and the offender enjoys the facilities of food and
shelter in jail. Few decades ago, the criminologists/sociologists acknowledged the importance
of compensation and its benefits for the victims of crime. In pursuance of the
recommendations of Law Commission of 41st Report (1969), a comprehensive provision for
the compensation to the victims of crime has been provided in Sec.357 of Cr. P. C. According
to the sub s. (1) and sub s. (3) of s. 357, “The court may award compensation to the victims of
crime at the time of passing of judgement, if it considers appropriate in a particular case in
the interest of justice”. In 2008, the Government introduced major amendments to the Cr.
P.C., in order to strengthen India’s criminal justice system.1 The amendment for the first time
made an attempt to define the term “victim”2 and revamp the obsolete laws related to
provision of compensation to victims. Unfortunately it once again leaves the provision of
compensation to the sole discretion of the judge; something that has been rarely exercised of
their own accord in the past- the vanishing point of Indian victim compensation law.3
Recently, the honourable Supreme Court of India took a revolutionary step in some
cases for granting compensation to the victim of state excesses by invoking Arts. 32 and 226
of the Constitution. The Art. 32 confers the power on the Supreme Court to issue directions,
orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto, certiorari, which ever may be appropriate for the enforcement of any of the
fundamental rights conferred by part III of the Constitution.4 It is worth notable that when
the constitutional rights of person are invaded, the invasion cannot be washed away merely
by the restoration of rights. So the Supreme Court while invoking Art. 32 of the Constitution
provided two types of monetary reliefs namely compensation and exemplary costs. So in
present time the person who is unlawfully deprived of his personal liberty by the official of
1 The amendments were notified in December 2009. 2 S. 2(wa), Code of Criminal Procedure, 1973, inserted in 2008 3 Vibhute K. I., “Justice to Victims of Crime: Emerging Trends and Legislative Models in India” 370,
in Criminal Justice : A human Rights Perspective of the Criminal Justice Process in India (2004). 4 Art. 32 (2) of the Constitution of India, 1950
185
the state is legally entitled to claim compensation. In India. the statutory coverage to law of
compensation has been provided in the Code of Criminal Procedure, 1973. The present
chapter studies the idea of compensation in Indian judicial system under three heads:
A- Compensation through Statutory provisions
B- Compensation through Public law
C- Compensation through NHRC
A- COMPENSATION THROUGH STATUTORY PROVISIONS
S. 357, Cr.P.C. as mentioned earlier, leave it entirely to the discretion of courts to
grant compensation to crime victims and defray costs of the proceedings. These statutory
provisions, neither give victims of crime a statutory right to be compensated nor mandate
courts to record reasons for not invoking these sections to compensate the ‘loss or injury
caused by the commission of the offence’. There is lack of any institutional mechanism for
recovering the ordered ‘compensation’ [from the ‘fine’ imposed under s. 357(1), Cr. P.C.], or
the ‘specified amount’ [not constituting part of the sentence under s. 357(3), Cr.P.C.], or
‘reasonable compensation’ (awarded under S. 5, Probation of Offenders Act, 1958), and/or
costs of proceedings (awarded under both the provisions of Cr.P.C. & POA) from a
recalcitrant offender and paying it to the victims. However, Chapter XXXII of the Cr.P.C.
contains a couple of provisions that deals with recovery of ‘fine’ and ‘money (other than fine)
payable by virtue of any order made under the Code’.
S. 421(1),5 Cr. P.C., inter alia, provides for recovery of fine and, in turn, payment to
the injured person of expenses or compensation out of the fine imposed under s. 357, Cr. P.C.
It empowers a criminal court, that passes a sentence of fine, at its discretion, to recover the
fine either by attaching and selling movable property of the offender or as arrears of land
revenue from the movable and/or immovable property of the offender and thereby can make
payment of the ordered ‘compensation’ to the crime victim. By virtue of the proviso of the
section, a court is not allowed to resort to either of the methods when the offender has
5 S.. 421(1) Cr.P.C., runs as: ‘When an offender has been sentenced to pay a fine, the Court
passing the sentence may take action for the recovery of fine in either or both of the following
ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and sale of any movable property
belonging to the offender;
(b) issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears
of land revenue from the movable or immovable property, or both, of the defaulter:
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be
imprisoned, and if such offender has undergone the whole of such imprisonment in default, no
Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers
necessary so to do, or unless it has made an order for the payment of expenses or
compensation out of the fine under s. 357’.
186
undergone the whole of the imprisonment awarded in default of payment of the fine except
for special reasons to be recorded in writing or where it has made an order for payment of
expenses or compensation out of the fine under s. 357, Cr. P.C. It is also important to note
that by virtue of s. 431 of the Code, provisions of s. 421, Cr. P.C, are equally applicable for
the recovery of ‘specified amount’ of compensation awarded under s. 357 (3), Cr. P.C.. S.
431, Cr. P.C., gives power to a criminal court to recover ‘any money (other than a fine)’
payable by virtue of any order made under the Cr. P.C. as if it were a fine if a ‘method’ for its
‘recovery’ is not expressly provided for in the Cr. P.C.6
Thus s. 431 of the Code provides for recovery of any money (other than a fine)
payable by virtue of any order made under the Code and the recovery of which is not
otherwise expressly provided for. Compensation awarded by a court can fall in this category.
S. 431 says that such money shall be recoverable as if it were if a fine. S. 431 of the Code
reads thus:
“ 431. Money ordered to be paid recoverable as fine – Any money (other than a fine) payable
by virtue of any order made under this Code, and the method of recovery of which is not
otherwise expressly provided for, shall be recoverable as if it were a fine:
Provided that Section 421 shall, in its application to an order under Section 359, by virtue of
this section, be construed as if in the provision to sub-section (1) of Section 421, after the
words and figures ‘under Section 357’, the words and figures ‘ or an order for payment of
costs under Section 359’ had been inserted.”
Thus, one has to again fall back on s. 421 of the Code for recovery of compensation
directed to be paid by the court. For the purpose of mode of recovery, compensation is put on
par with fine.7
S. 64 of the IPC also needs to be quoted because it provides for sentence of imprisonment for
non-payment of fine. It reads thus:
“ 64. Sentence of an imprisonment for non-payment of fine.—In every case of an offence
punishable with imprisonment as well as fine, in which the offender is sentenced to a fine,
whether with or without imprisonment, and in every case of an offence punishable with
imprisonment or fine, or with fine only, in which the offender is sentenced to a fine, it shall
6 Supra note 3 7 R. Mohan v. A. K. Vijaya Kumar, 2012 Cri. LJ 3953 at 3957
187
be competent to the court which sentences such offender to direct by the sentence that, in
default of payment of the fine, the offender shall suffer imprisonment for a certain term,
which imprisonment shall be in excess of any other imprisonment to which he may have been
sentenced or to which he may be liable under a commutation of a sentence.”
The above provisions were examined by this Court in Vijayan v. Sadanandan K. &
Anr.8 After quoting them, this Court rejected the submission that where there is default in
payment of compensation ordered by the court, recourse can only be had to s. 421 of the
Code because there is no provision enabling the court to award a default sentence. This Court
observed that if such a view is taken, the very object of sub-section (3) of s. 357 would be
frustrated and the relief contemplated therein would be rendered somewhat illusory.
Against this background it is significant to note that the provisions of ss. 421 and 431
of the Code, by virtue of s. 5(2) of the POA, can be invoked to recover ‘compensation’
awarded under [S. 5(1)] the POA to victims of crime for any ‘loss or injury.’9 Thus, the
institutional arrangement designed for compensating victims of crime leaves it to the
complete discretion of the court to recover and pay compensation, like the award of
compensation, to a crime victim. 10
Judicial Trends in Awarding Compensation
The Supreme Court in Sarwan Singh v. State of Punjab11
, has elaborately
highlighted the objectives and guidelines for the exercise the courts' power under s. 357.
The Court articulated its object as to provide compensation payable to the persons who are
entitled to recover damages from the person sentenced whether or not fine forms the part of
it. In awarding compensation it is necessary for the court to decide whether the case if fit
one in which compensation has to be awarded. The Supreme Court clarified that it was the
duty of the court to take into account the nature of the crime, the injury suffered, and the
justness of the claim of compensation, the capacity of the accused to pay compensation and
other relevant circumstances in fixing the amount of fine or compensation. If the accused is
not able to pay the fine or compensation, imposing a default sentence for non-payment of
8 (2009) 6 SCC 652 9 S.5(2), POA which makes it clear that ‘reasonable compensation’ for loss or injury caused or
‘costs’ of the proceedings ordered under Sec.5(1) may be recovered as ‘fine’ in accordance with the
relevant provisions of the Cr.P.C., Says: ‘The amount ordered to be paid under sub-section(1) may be
recovered as a fine in accordance with the provisions of Sections 386 (new Sec. 421), and 387 (new
Sec. 422)’. 10 Supra note 6 11 AIR 1978 SC 1525.
188
fine would not achieve the object. In case where the accused is in position to pay
compensation then the Court further went on. When a person who caused injury due to
negligence or has made vicariously liable is bound to pay compensation, it is appropriate to
direct payment by the accused who is guilty of causing an injury with necessary mens rea to
pay compensation for the persons who has suffered injury.
Apart from invoking s.357 of the Cr. P.C. the victim may approach the High Court
under s. 482,12
of Cr.P.C. to claim compensation, which empowers a higher court to
exercise its inherent power in the interest of justice. However, the Supreme Court has not
favoured invoking of such a power in view of existing statutory provisions under s. 357 of
Cr. P.C. In Palanippa Gounder v. State of Tamil Nadu13
the Court observed,
“If there is an express provision in a statute governing a particular subject-matter, there is
no scope for invoking or exercising the inherent powers of the court because the court
ought to apply the provisions of statute. Hence, the application made by the heirs of the
deceased for compensation could not have been made under Section 482 since Section
357 expressly confers powers on the court to pass an order for payment of
compensation.”
In Palaniappa Gounder case14
Supreme Court was considering the applicability of s.
357 of the Cr.P.C. In this case the accused were sentenced to death. On appeal file by the
accused, High Court reduced the death sentence to that imprisonment for life. However,
while reducing the sentence High Court imposed a fine of Rs. 20,000 on the accused and
directed that out of the fine, it realized, a sum of Rs. 15,000 should be paid to the son and
daughters of the deceased under s. 357(1) (c) of the Code. This order came to be passed on an
application filed by the son and daughters of the deceased praying that the accused be asked
to pay them, as heirs of the deceased, compensation of a sum of Rs. 40,000 for the death of
their father. Though the application filed was one under s. 482 of the Code, Court said that it
could be treated that one under s. 357 of the Code which provisions specifically dealt with
such a case. Though upholding the order of the High Court in imposing fine and directing
payment of compensation to heirs of the deceased, the Supreme Court reduced the sentence
of fine to Rs. 15,000 and directed that the fine so recovered shall be paid to the heirs of the
12 S.482. Saving of inherent powers of High Court: Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to make such orders as may be necessary to give
effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to
secure the ends of justice. 13 (1977) 2 SCC 634. 14 Ibid
189
deceased. The Court said that provisions of clauses (a), (b) and (d) of s.357 were inapplicable
and clause (c) of s. 357(1) was relevant. This court, however, said that though it was
legitimate to sentence the accused to fine as well "but legitimacy is not to be confused with
propriety and the fact that the Court possesses a certain power does not mean that it must
always exercise it.” It said that the power to combine sentence of death is an extreme penalty
to impose and adding to that grave penalty a sentence of fine is hardly calculated to serve any
social purpose. The approach of this Court in the present day context needs further thought.
However this observation of Court is to be confined to a case where accused has been
sentenced to death.
In Guruswamy v. State of Tamil Nadu,15
the Supreme Court awarded Rs. 10,000 as
compensation to the widow and the minor children of the deceased. In this case five accused
armed with weapons caused injuries to the deceased which resulted in his death due to
dispute over water among brothers in a family. The Supreme Court imposed a fine of Rs.
3500 on each of the accused which was to be paid to the widow of the deceased as
compensation. In Hari Singh v. Sukhbir Singh and Ors.,16
Supreme Court took a different
stance. It called upon all the courts to liberalise its power under s. 357 of the Code. It said that
power of the Courts to award compensation to victims under s. 357, while passing judgment
of conviction was not ancillary to other sentences but in addition thereto and that this power
was intended to do something to reassure the victim that he or she was not forgotten in the
criminal justice system. In this case accused was convicted under ss. 325, 148 and 149 IPC.
Power of speech of the victim was impaired permanently. High Court granted compensation
of Rs. 2500 which the Court said would be payable by each of the accused having regard to
the nature of injuries suffered by the victim. The Court found that accused had means and
ability and were also willing to bear the additional financial burden. The award of
compensation was enhanced to Rs. 50,000.
Another aspect is that in given low rates of convictions in criminal cases (less than 10
percent), the inordinate delay in the accused person, it is preposterous to say that victim
compensation really operates in administration of justice in India today. It may not
15 (1979) 3 SCC 797 16 AIR 1988 SC 2127
190
exaggeration to say that in practice not even one percent of deserving victims get
compensation through criminal courts today.17
In Swaran Singh v. State of U.P.,18
the Supreme Court treated compensation as an
alternative to imprisonment. On special leave petition, it upheld the conviction but reduce the
sentence to the period already undergone (one year) by the accused. It directed accused to pay
the widow of the deceased a fine of Rs. 20,000 by way of compensation under s. 357 of the
Cr.P.C. The Apex Court's decisions may be viewed as a liberal interpretation of the law in
order to aid the causes of the victim. Although the quantum of compensation ordered by the
Court is paltry in relation to the gravity of the offence, nonetheless the decision is in line with
growing trend of incorporating the concept of paying compensation to victims in the courses
of criminal proceedings. It may be painful for the offender to pay compensation, but it would
be equally painful if the victim is directed to approach the civil court for compensation.19
In Rachpal Singh v. State of Punjab,20
however the Supreme Court maintained the
order of High Court seeing the circumstances of the case it reduced the heavy compensation
awarded to the victim. The present case occurred due to a civil dispute pending between the
deceased and the appellant. The deceased obtained an interim order pertaining to the civil
dispute. This in turn led to a fight between the deceased and the appellants. The first appellant
armed with a gun and the second appellant armed with a rifle along with three other accused
attacked the deceased. The first and second appellant fired shots at the two deceased and they
received two bullet injuries each and died on the spot. The Sessions Judge after considering
the materials placed before him, found the appellants guilty and convicted and sentenced the
first two appellants to death for an offence under s. 302 IPC and the other accused to life
imprisonment. They were also sentenced to varying terms of imprisonment with fine with
regard to other offences. Against this order the accused preferred an appeal challenging the
convictions and sentences. The complainant separately preferred a Criminal Revision Petition
praying for compensation under s. 357 Cr. P.C. The High Court concurred with the findings
of the Sessions Court on the conviction imposed but held that the imposition of capital
punishment was uncalled for as the case was not one of the rarest of rare case and hence their
sentence was reduced to imprisonment for life. Considering the revision petition, the High
17 Menon , N.R., “Victim Compensation Law and Criminal Justice: A Plea for a Victim- Orientation in
Criminal Justice”, Supra note 3at 364 18 (1998) 4 SCC 75. 19 Gaur, K.D., “Justice to Victims of Crime: A Human Rights Approach”, Supra note 3 at 356. 20 2002 Cri. LJ 3540 SC
191
Court held that it was a fit case for exercising the jurisdiction under s. 357 Cr. P.C. and
directed each of the appellant to pay a sum of Rs. 2,00,000 totalling Rs. 4,00,000 and in
default, was to undergo a sentence of five years rigorous imprisonment. Against the order the
appellants filed an appeal before the apex court. The Court after hearing the learned counsels,
held that there was no ground to differ from the reasoning of the court below and upheld the
conviction and sentence. With regard to the award of compensation under s. 357, the Court
held that the High Court in the instant case did not have sufficient material before it to
correctly assess the capacity of the accused to pay compensation but keeping the object of the
s. it is a fit case in which the court was justified invoking s. 357. The court after having gone
through the records and materials found that the appellants were reasonably affluent. Hence,
the appellants were capable of paying at least Rs. 1,00,000 per head as compensation
Therefore, the order of the High Court was modified by reducing the compensation payable
from Rs. 2,00,000 each to Rs. 1,00,000 each.
In Hari Krishan Case21
the Supreme Court recommended that all criminal courts
should exercise this power (under s. 357) liberally so as to meet the ends of justice, by
cautioning that the amount of compensation to be awarded must be reasonable. The court
held that “in order that collective may not lose faith in criminal adjudication system and the
concept of deterrence is to be kept at a remote corner we are disposed to enhance the amount
of compensation to Rs. 30000/-". The court referred to the case of Sarup Singh v. State of
Haryana22
, wherein the apex court while reducing the sentence for the period already
undergone by the accused under s. 304 IPC, directed to pay a sum of Rs. 20,000/- by way of
compensation. The court further emphasized that the amount of compensation was enhanced
taking into consideration the gravity of the injury, the strata to which the accused belongs, the
milieu in which the crime has taken place and further keeping in view the cry of the society
for the victims at large. The entire amount shall be paid to the injured on proper
identification. The amount shall be deposited before the trial court within for months failing
which the appellant shall have to undergo further rigorous imprisonment of four years. The
sentence of conviction of the appellant under s. 307 IPC is maintained with modification in
the sentence.
21 Supra note 16 22 AIR 1995 SC 2452
192
In Manjappa case23
, the appellant-accused had voluntarily caused simple hurt to the
complainant. The appellant was also said to have assaulted the complainant with a stone
resulting in grievous injuries to the complainant. Moreover, the appellant-accused
intentionally insulted the complainant by using abusive language thereby provoking him,
knowing fully well that such provocation would make complainant to break public peace or
to commit other offences. The charge was framed against the accused for offences punishable
under ss. 323, 325 and 504 of the IPC. The trial court, after appreciating the prosecution
evidence, by its judgment, dated 8th March 1999 held that charges against accused were
proved under ss. 323 and 324 IPC except under s. 504. So far as sentence was concerned, the
trial court awarded simple imprisonment for three months and a fine of Rs. 500, in default to
undergo simple imprisonment for fifteen days for the offence punishable under s.323 I.P.C.
He was also ordered simple imprisonm0ent for one year and fine of Rs. 3000, in default to
undergo simple imprisonment for three months for the offence punishable under s. 325 IPC.
The court also ordered that out of the fine amount so received, the injured-complainant will
be paid compensation of Rs. 2000/- under s. 357(1) (b) of the Cr.P.C. of 1973. Against this
order of conviction and sentence, the appellant preferred an appeal in the court of Sessions
Judge. The Sessions Judge, after considering the evidence and hearing the arguments,
acquitted the appellant for the offence punishable under s. 323 IPC and set aside the order of
conviction and sentence. He, however, confirmed the order of conviction of the accused for
the offence punishable under s.325 IPC. The appellant court, however, was of the view that it
was a fit case to reduce sentence of simple imprisonment from one year to six months. The
appellate court also directed the accused to pay compensation of Rs. 3000 to the complainant
who had sustained grievous injuries, independently of what the trial court awarded. The
sentence of fine and compensation passed by the trial court was confirmed. The appellant
filed a revision petition in the High Court confirmed the order of conviction. The High Court
also partly allowed the revision by reducing sentence and ordering the appellant to undergo
simple imprisonment for one month and to pay a fine of Rs.1000/- in addition to what was
ordered by the courts below. The appellant then approached the Supreme Court against the
order passed by the High Court. The Honourable Judges of the Supreme Court in their order
stated that “keeping in view all the facts and circumstances in our opinion, ends of justice
would be met, if we order that the substantive sentence which the appellant has already
undergone is held sufficient. We are also of the view that it would be appropriate if over and
23 Manjappa v. State of Karnataka, 2007 SCCL COM 599.
193
above the amount which the appellant herein has paid towards fine and also towards
compensation to the injured victim, the appellant is ordered to pay an additional amount of
Rs. 10000/- to the complainant by way of compensation."24
In Roy Fernandes v. State of Gao and Ors.,25
the court directed the accused to pay
Rs. 3.00.000 as compensation to the widow of deceased. The accused has already undergone
three months imprisonment out of the sentence awarded to him. Besides that the court
considered that the accused has capacity to pay the compensation. In Manish Jalan v. State
of Karnataka,26
the court felt that the provision regarding award of compensation to the
victims of crimes had not been made use by courts as often as it ought to be. This court
observed:
“Though a comprehensive provision enabling the court to direct payment of compensation
has been in existence all though but the experience has shown that the provision has really
attracted the attention of the courts. Time and again the courts have been reminded that the
provision is aimed at serving the social purpose and should be exercised liberally yet the
results are not heartening.”
In the above case the appellant had been convicted under ss. 279 and 304 A of the
IPC. The substantive sentence of imprisonment was in that case reduced by this Court to the
period already undergone with payment of fine and a compensation of an amount of rupees
one lakh to the mother of the victim. Reference may also be made to the decision of this court
in Rachpal Singh and Anr. v State of Punjab27
, where this Court emphasised the need to
assess and award compensation by the accused to the gravity of the offence, needs of the
victim’s family as also the paying capacity of the accused.
Compensation As Mitigating Factor
It is noted that courts have used compensation as a mitigating factor and reduced the
quantum of punishment accordingly. Some of the cases in which sentences have been
commuted by courts and compensations have been awarded to victims are discussed below.
24 See Further Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. 2007 CriLJ 2417. Smt. N.
Shanthamma v. State of Andhra Pradesh A.P. High Court, 2010 CriLJ 2629 25 2012 CriLJ 1542 SC 26 AIR 2008 SC 3074 27 Supra note 20
194
I - Compensation for Murder
In murder cases, courts are of the view that true justice will be rendered only when
proper compensation is provided to the dependants of the deceased. The amount of
compensation awarded ranges from Rs.10,000/- to Rs.1,00,000/- depending upon the number
of dependants of the deceased and capacity of the accused to pay the same. In Guruswamy v.
State of Tamil Nadu28
, the Supreme Court awarded Rs.10,000/- as compensation to the
widow and the minor children of the deceased. In Guruswamy29
case five accused armed
with weapons caused injuries to the deceased which resulted in his death due to a dispute
over water among brothers in a family. The Supreme Court imposed a fine of Rs.3,500/- on
each of the accused which amount was to be paid to the widow of the deceased as
compensation. In Sarwan Singh v. State of Punjab30
the Supreme Court awarded
compensation to the extent of Rs. 10,000/- payable to the widow and the unmarried daughter
of the deceased.
It is evident from the analysis of the cases cited above that whenever the court
enhances compensation amount, it commutes or reduces the punishment. In other words,
monetary compensation is substituted in lieu of substantive sentence31
.
However, the Supreme Court is not consistent in awarding compensation while
reducing substantive sentence. For instance, in the Palaniappa Gounder32
case it held that
the compensation of Rs.20,000/- awarded by the High Court was unduly excessive and
reduced the amount to Rs.3,000/-. Similarly, in the Palaniappa Gounder v. State of T.N33
.,
the Supreme Court reduced the amount of compensation from Rs.10,000/- to Rs.5,000/-
payable to the heirs of the deceased. The Supreme Court pointed out that there was no
justification for substituting the monetary compensation for the substantive sentence. In
Swaran Singh v. State of U.P.34
, the Supreme Court treated compensation as an alternative
to imprisonment. On special leave petition, it upheld the conviction but reduced the sentence
to the period already undergone (one year) by the accused. It directed the accused to pay to
the widow of the deceased a fine of Rs. 20,000/- by way of compensation under s. 357 of the
Cr.P.C.
28 (1979) 3 SCC 797 29 Id 30 Supra note11 31 Supra note 19 32 Supra note 13 33 Ibid 34 (1998) 4 SCC 75.
195
The Apex Court’s decisions may be viewed as a liberal interpretation of the law in
order to aid the cause of the victim. Although the quantum of compensation ordered by the
Court is a paltry sum in relation to the gravity of the offence, nonetheless the decision is in
line with the growing trend of incorporating the concept of paying compensation to victims in
the course of criminal proceeding. It may be painful for the offender to pay compensation,
but it would be equally painful if the victim is directed to approach the civil court for
compensation.35
In Kaliben Rabari v. State of Gujarat & Ors.,36
the accused is punished under s.
304 Part I to s.304 Part II of Indian Penal Code, 1860. The trial court awarded the 10 years
punishment along with Rs. 5 lakhs compensation to the victim. Later the Appellate Court
reduced the imprisonment from 10 years to two and half years and also reduced the
compensation from Rs. 5 lakhs to Rs. 3 lakhs. The Supreme Court observed that there was no
basis for reducing the compensation as awarded i.e. Rs. 5 laks to rs. 3 lakhs. No reason has
been indicated to justify the reduction. Accordingly, Supreme Court enhanced the quantum of
compensation to Rs. 5 lakhs.
II - Compensation for Sexual Assault
Of late, the Apex Court has come to the rescue of the victims of sexual assault by
holding that interim compensation may be awarded to a rape victim even during the pendency
of the criminal trial.37
The Court has said on more than one occasion that a victim of rape
must be compensated, though there can be no compensation for what she has suffered or lost.
It cannot be translated into monetary terms. However, adequate compensation is necessary
for the loss of reputation, agony, torture, misery and the deprivation of the prospect of
marriage and settling down to a serene family life. This philosophy is reflected in Kunhimon
v. State38
, where five accused committed rape on a young rustic girl. The High Court of
Kerala, justifying the necessity of compensation to rape victims, observed that courts should
enforce the conscience of law as seen in s.357 of the Cr.P.C. The High Court sentenced the
four accused to pay a fine of Rs. 3,000/- each and the fifth accused, to pay Rs.10,000/- as
compensation to rape victim.
35 Supra note 3 36 2009 Cri. LJ 2843 SC 37 Bodhisatwa Gautam v. Subhra Chakraborty , (1996) 1 SCC 490 38 1998 Cri. LJ 493.
196
B- COMPENSATION UNDER PUBIC LAW
The award of compensation for established infringement of the indefeasible rights
guaranteed under the Constitution is a remedy available in public law since the purpose of
public law is not only to civilise public power but also to assure the citizens that they live
under a legal system wherein their rights and interest shall be protected and preserved.39
Several provisions in the Indian Constitution endorse the principle of victim compensation.
In a large number of cases the Supreme Court as well as High Courts, have introduced
the compensatory jurisprudence by invoking their writ jurisdictions. The monetary
compensation for redressal by the Court acts as a useful and at times perhaps the only
effective remedy to apply balm to the wounds of the family members of the deceased victim.
This innovation as created by Supreme Court will also help in reducing backlog as well as
multiplicity of litigation and providing speedy, less expensive justice to the victim. In
Rabindra Nath Ghosal v. University of Calcutta and Ors,40
Supreme Court held:
“The Courts having the obligation to satisfy the social aspiration of the citizens have
to apply the tool and grant compensation as damages in a public law proceeding.
Consequently when the Court moulds the relief in proceedings under Articles 32 and 226 of
the Constitution seeking enforcement or protection of fundamental rights and grants
compensation, it does so under the public law by way of penalising the wrongdoer and fixing
the liability for the public wrong on the State which has failed in its public duty to protect the
fundamental rights of the citizens. But it would not be correct to assume that every minor
infraction of public duty be every public officer would be commend the Court to grant
compensation in a petition under Articles 226 and 32 by applying the principle of public law
proceeding. The Court in exercise of extraordinary power under Articles 226 and 32 of the
Constitution, therefore, would not award damages against public authorities merely because
they have made some order which turns out to be ultra vires, or there has been some inaction
in the performance of the duties unless there is malice or conscious abuse. Before exemplary
damages can be awarded it must be shown that some fundamental right under Article 21 has
been infringed by arbitrary or capricious action on the part of the public functionaries and
that the sufferer was a helpless victim of that act.”
39 Mathew P.D., “Compensation for Torture and Custodial death 12,” Legal News and Views, July
(1997) 40 AIR 2002 SC 3560
197
The Supreme Court in the Union Carbide case41
laid down the principles which
should be followed in determining just and reasonable compensation in a fatal accident case.
The measure of damages payable by the alleged tort-feaser as per the nature of the tort
involved in the suit has to be correlated to the magnitude and the capacity of the enterprise
because such compensation must have a deterrent effect. Ordinary standards of compensation
adopted in motor accident cases are not to be followed. It referred to M.C. Mehta case42
criticism and pointed out that it ignores the emerging postulates of tortious liability whose
principal focus is social limits on economic adventurism. This necessitates machinery for
determining the quantum of compensation and ensuring that the amount is paid to the
victims. In all cases of compensation, the Supreme Court and High Courts should direct that
either the District Judge or the First Class Magistrate would determine the amount of
compensation and pass orders accordingly on the violation based strategy.
The Court endorsed the statement of law laid down in Bandhu Mukti Morcha v.
Union of India43
that "Article 32 does not merely confer power on the court to issue a
direction, order or writ for the enforcement of the fundamental rights but it also lays a
constitutional obligation on this court to protect the fundamental rights of the people and for
that purpose this court has all incidental and ancillary powers including the power to forge
new remedies and fashion new strategies designed to enforce the fundamental rights."44
This
is quite vivid that the power of Supreme Court under Art. 32 to deviate from the traditional
jargon and to formulate new horizons in granting effective relief for violation of fundamental
rights particularly the right to personal liberty.
In People’s Union for Democratic Rights v. Union of India45
, the Supreme Court
observed:
“ ……. Public interest litigation is brought before the Court not for the purpose of
enforcing the right of one individual against another as happens in the case of an ordinary
litigation, but it is intended to promote and vindicate public interest which demands that
violation of constitutional or legal rights of large number of people who are poor, ignorant or
in a socially or economically disadvantaged position should not go unnoticed and
unredressed.”
41 Union Carbide Corporation v. Union of India, AIR 1990 SC 273 42 M. C. Mehta v. Union of India, AIR 1987 SC 1086 at 1099 43 AIR 1984 SC 802 44 AIR 1984 SC 802 cited in M.C. Mehta's case Supra note 42 at 1089 45 AIR 1982 SC 1473
198
Public Wrong and Fundamental Right
In Pratap Kumar Nayak v. State of Orissa &Ors., 46
the son of applicant during the
transfusion of blood acquired HIV +ve at the age of 17 months. The parents of victim were
not found HIV +ve. State Government blood bank is negligent in not conducting Antigen
Test though PCR method at time of collecting blood to ensure detection of HIV available.
Hence, they were held to be jointly and severally liable to pay compensation for infringement
of fundamental right to life, health and medical care. Accordingly, compensation of Rs.
3,00,000/- was awarded to victim.
In Motibai & Anr. v. State of Chhattisgarh,47
the husband of petitioner was forcibly
taken by the respondents. During the course of transit he was brutally beaten by them. He
died on the same date on which he was arrested. The court awarded meagre sum of Rs.
50,000/- as compensation. After the plea of dependants of deceased the court awarded Rs. 1.5
lakh more in addition and also allowed for civil suit. In Sattar Sheikh & Anr. v. Municipal
Corporation of Delhi,48
in this case the 9 years old boy fell in open manhole in a vacant plot
meant for Sulabh Shauchalaya. This happened due to the negligence of Municipal
Corporation while performing their construction work. The state was held liable for the acts
of its servants and the compensation of Rs. 6,97,623/- was awarded to the family of the
deceased.
In popularly known Bhagalpur Blinding Case49
, it was alleged in a petition that
police blinded certain under trial prisoners and state was liable to pay compensation to them.
This inhuman act was treated as violation of the fundamental right to life guaranteed under
Art. 21 of the constitution, conceding the state liability, the Court directed the state of Bihar
to provide them the best treatment at state cost. In this way the medical relief at state's cost
was granted and to pay compensation to them was not decided by the Court because the
matter as to the responsibility of the police officer was still under investigation. Exploring a
new dimension of right to life and personal liberty, P.N. Bhagwati J.said, “Why should the
Court not be prepared to forge new tools and devise new remedies for the purpose of
vindicating the most precious of the precious fundamental rights to life and personal
liberty".50
46 AIR 2012 Ori. 53 47 AIR 2012 Chh. 111 48 AIR 2012 Del. 190 49 Khatri v. State of Bihar, AIR 1981 SC 928 50 Id at 930.
199
One such pronouncement of the Supreme Court came in the case of Rudal Shah v.
State of Bihar51
reveal " a sordid and disturbing state of affairs "52
for which the
responsibility squarely lay on the administration. The petitioner was acquitted by the Court of
Session in June 1968 but he was released from jail in October 1982 i.e. after 14 years after his
acquittal. A writ of habeas corpus was moved on his behalf to releasing, the detenue and also
claimed compensation on account of the deprivation of his fundamental right guaranteed by
Art. 21. The question arose whether the Supreme Court has power to award compensation in
the form of damage or otherwise on account of such deprivation in a petition under Art. 32?
After considered the shocking facts of the case, it was the view of Court as expressed
by Chandrachud CJ that if it refused to pass an order of compensation in favour of the
petitioner, “it will be doing merely lip service to the fundamental right to liberty which the
State Government has so grossly violated."53
Such a course will denude the right to life and
personal liberty under Art. 21 of its significant content. Thus court directed to state to pay
compensation as an interim measure in the sum of Rs. 35000/- for the deprivation of his
liberty.
For its order the Court observed “Administrative sclerosis leading to flagrant
infringement of fundamental rights cannot be corrected by any other method open to the
judiciary to adopt. The right to compensation is some palliative for the unlawful acts of
instrumentalities which act in the name of public interest and which present for their
protection the powers of the state as a shield."54
It overruled the Kasturi Lal case55
and lays
down that state is responsible for negligence and wrongs committed by its servants.
The Supreme Court in this case has fixed monetary liability on the state for a gross
violation of the petitioner's fundamental right under Art. 21. The Supreme Court has served
notice that it will create new remedies in its original jurisdiction under Article 32, where such
remedies are indispensable to the vindication of the fundamental rights. While it is fairly
obvious that the responsibility for the enforcement of the fundamental rights lies on the
Supreme Court by virtue of Art. 32, it is apparently difficult to concede that such a
responsibility extends to the creation of new remedies. It is alleged that this would involve
51 AIR 1983 SC 1086; also see: Jiwan mal Kocher v. Union of India, AIR 1983 SC 1107 wherein
relief of damage and compensation for alleged losses, humiliation and indignation suffered by the
petitioner could not be granted under Article 32. 52 Jain & Jain, Principles of Administrative Law 779, 14th Ed (2001); Also see. Singh, R.K., “The
Emergence of Compensatory Jurisprudence and Protection of Human Rights” 31, Punjabi
University Law Journal, vol.III (2009) 53 Supra note 51 at 1089 54 Ibid 55 Kasturi Lal v. State of U.P., AIR 1965 SC 1039.
200
the court in making decisions on policy, which in truth is a matter to be left to the legislature
and that this would contravene the constitutional frame work for the separation of power.56
There is a possibility that the creation of the remedy of compensation under article 32 without
legislative authorization might involve a decision on policy in the area of allocation of search
resources which is ordinary in the legislative province.57
Rudal Shah Judgment denotes a bold departure from the hitherto existing legal
position and created far reaching significance. Ultimately, the Court has adopted new
measures only for making the fundamental rights meaningful and effective and has emerged
as the champion of the weak, the poor and unprivileged people. The Court under Article 32 is
also free to devise any procedure appropriate for the particular purpose of the proceeding i.e.
fundamental right. The power of the Court is not only injunctive in ambit, but it is also
remedial in scope. It can order payment of compensation in appropriate cases. Because of
this, the Courts in India are now becoming conscious about increasing cases of excesses and
negligence on the part of the administration resulting in the negation of the personal liberty.
The use of writ jurisdiction for awarding compensation to the victim has made the remedy
cheap, fast and more effective.
Custodial Death:
In Kunj Parida v. State of Orissa & Ors.,58
death of deceased was due to lack of
proper care and non supply of medical care as well as adequate and proper diet to the
deceased by the jail authorities. The court awarded Rs. 5 Lac as compensation to the
deceased family. In Sebastian M. Hongray v. Union of India -II59
two persons were taken
to the Military camp by the army authorities in Manipur. They were not produced before the
Court in obedience of a writ of habeas corpus filed by their wives under Art. 32. The
respondent stated that inspite of extensive search, they could not be traced. On the basis of
material placed, their death was presumed by the Court that they must have met with
unnatural death while in Army custody. The Court keeping in view the torture, agony and
mental oppression undergone by the wives of said persons, instead of imposing a fine on the
government for civil contempt of the court, required that as a measure of exemplary costs is
56 Art. 50; Also see Gopal, K. V., “A New Dimension to the Liability of the State under Article 32 ” 348,
Indian Bar Review, Vol. 11(4) (1984) 57 Dellinger,W.E., “Rights and Remedies: The constitution as a sword” 1533, 85 Harv. Law. Rev.
(1971) 58 AIR 2012 Ori. 126 59 AIR 1984 SC 1026
201
permissible in such cases, the government must pay Rs one lakh to each to their wives of
those persons.60
Mahabir Singh v. State of Rajasthan,61
a young boy was arrested on a theft charge.
He died in police custody. The court granted Rs. one lakh for his custodial death ; In People
Union for Democratic Rights v. Police Comm. of Delhi,62
and in Saheli a women's
Resource centre v. Comm. of Police, Delhi,63
both cases related to custodial violence,
where court directed the relevant state to pay compensation Rs. 75000 to each case for
rehabilitating the dependents of the deceased. Although in former case labourer was in mid-
aged and a young boy in latter case but court awarded equal amount of compensation, inspite
of their age differences.
Another valuable authority on police atrocity in which the court reiterated its view on
the basis of earlier judgments64
in Nilabati Behera v. State of Orissa,65
the deceased aged
about 22 years was taken into police custody by the police officer in connection with the
investigation of an offence of theft. His mother went to the police station with food for him
he ate. On the next day early in the morning the petitioner came to know that dead body of
her son with a handcuff and multiple injuries was found laying on the railway track. The
mother of the deceased informed through a letter to the Supreme Court alleged custodial
death of her son and claimed compensation on the ground of violation of Art. 21. On the
basis of evidence of medical doctor who conducted post- mortem examination and the report
of Forensic Science Laboratory the court concluded that deceased had died in the police
custody on account of torture by the police.
Keeping the regard to the age and his monthly income the court directed to state to
pay Rs. one and half lakh as compensation to the deceased's mother. The Court, however,
clarified that this will not affect the petitioner right to claim compensation in other
proceedings in which case the amount awarded by the Court would be adjusted and also
concurred its view that " The Supreme Court is not helpless and the wide powers given to this
court by Art. 32, which itself is a fundamental right, imposes a constitutional obligation on
this court to forge such new tools, which may be necessary for doing complete justice and
enforcing the fundamental rights guaranteed in the constitution. This enables the award of
monetary compensation in appropriate cases, where that is the only mode of redress
60 Id at 1028 61 (1987) 2 SCC 342 62 AIR 1987 SC 355 63 AIR 1990 SC 513 64 Supra note 51 65 AIR 1993 SC 1960 (J.S. Verma, A.S. Anand & Venkatachalya JJ ).
202
available. This power available to this court under Art. 142 is also an enabling provisions in
this behalf."66
Kewal Pati v. State of U.P.67
is another case where the Court has awarded Rs.
one lakh compensation to the petitioner, the widow of a convict who was killed in jail by a
co-accused, while serving his sentence under s. 302 of Indian Penal Code. The Killing in jail
resulted in deprivation of his life contrary to law and in violation of Art. 21 is upheld and the
defence of sovereign immunity is negative. Right to life is one such right available to a
prisoner, whether he be a convicted or under trial or a detenue. Such rights cannot be defeated
by pleading the old and archaic defence of sovereign immunity which has been rejected
several times by Supreme Court.68
In Charanjit Kaur v. Union of India,69
a major in Army died in mysterious
circumstances, no proper investigation was made, the cause of his death. His case was
handled with culpable negligence and cynical in difference by the authorities. Court awarded
six lakhs compensation along with all incidental benefit as per law. In State of A.P. v. C.R.
Reddy, 70
known as prisoners murder case, in petition High Court awarded compensation to
the petitioner Rs.1,44,000. Instead, paying compensation, state officials brought the victim in
appeal to Supreme Court whereby the award of compensation was confirmed.
Again, a revolutionary judgment was delivered by the Supreme Court on the right of
arrestee and the formulation of compensation in public law in D.K. Basu v. State of West
Bengal.71
The court noted in almost all the States there were allegations of frequent deaths in
custody reported in media and custodial death is perhaps one of the worst crimes in a
civilized society governed by the rule of law. The Court illustrated that all forms of torture or
cruel, inhuman or degrading treatment would fall within the ambit of Art. 21 of the
constitution.72
In all matters the monetary compensation is an effective remedy for redressal
of the infringement of the fundamental rights to life or liberty by the public servants and the
state is vicarously liable for their tortious acts. To make it more clear, the award of
compensation in the public law jurisdiction is also without prejudice to other action like suit
for damage which is lawfully available to the victim or the heirs of the deceased with respect
66 Id at 1969 67 (1995) 3 SCC 600 68 State of A.P. v. C.R. Reddy, AIR 2000 SC 2083 at 2091 69 (1994) 2 SCC 1 70 Supra note 68 71 AIR 1997 SC 610 72 Id at 618
203
to the tortious acts committed by state functionaries."73
This relief under the public law
jurisdiction is, thus in addition to the traditional remedies and not in the derogation of them.
The monetary compensation for redressal by the Court finding the infringement of the
indefeasible right to life of the Citizen is therefore, a useful and at time perhaps the only
effective remedy to apply balm to the wounds of the family members of the deceased victim.
Further the Court has also pointed out that "the quantum of compensation depends upon the
peculiar facts of each case and no strait-jacket formula can be evolved in that behalf."74
Inder Singh v. State of Punjab,75
is also very glaring example of custodial death of
seven persons by Punjab Police. A Habeas Corpus petition was filed before the Supreme
Court of India in which court directed the CBI to conduct the investigation. The Director,
CBI reported that seven persons have been liquidated by Punjab Police. Court while
expressing strong ‘disapprobation’ for the Punjab Police, awarded the compensation of Rs.
1.50 lakh to the legal representative of each victim killed.
Wrongful Confinement and Encounters
The Supreme Court relied its earlier judgment76
and holds its view that personal
liberty is given an upper hand than the sovereign immunity. It was considered again in
Bhim Singh v. State of Jammu and Kashmir77
where court laid down that illegal detention
in police custody of the petitioner was held to constitute violation of his rights under Arts. 21
and 22 (2) and exercising its power to award compensation under Art.32 (2), directed the
State to pay Rs. 50,000/- as compensation to the petitioner for violation of his constitutional
right by way of exemplary costs. The fact of the case, petitioner was a member of the
Legislative Assembly and was illegally arrested and detained in police custody and
deliberately prevented from attending the Assembly Session. That is what Chinnappa Reddy
J said for the court “The police officer... acted deliberately and malafide and the magistrate
and the sub-judge aided them either by colliding with them or by their casual attitude. When
the constitutional rights of personal liberty was invaded the mischief or malice and the
invasion may not be washed away by his being set free.78
In appropriate cases the Supreme
Court has jurisdiction to award monetary compensation by way of exemplary costs or
otherwise. It shows that the doctrine of state immunity is not available where personal liberty
is violated.
73 Id at 628 74 Ibid 75 AIR 1995 SC 312 76 Rudal Shah Supra note 51; S.M. Hongray v. Union of India, AIR 1984 SC 1026. 77 AIR 1986 SC 494 78 Id at 499.
204
Looking from the other side there are also few cases in which the Supreme Court
hesitate to recognize the principle of compensation for deprived freedom and liberty, while
acknowledging the inadequacy of traditional remedies in such type of cases and the court has
taken different approach. Interestingly, Free Legal Aid Committee, Hazaribagh drew the
attention of the Court for callous and lethargic attitude of the administrative authorities in
Bihar. In Veena Sethi v. State of Bihar79
some prisoners were detained in prison for a period
ranging from 19 years to 37 years. They had been arrested in connection with certain offences
and had been declared insane at the time of their trial and were put in central jail of
Hazaribagh with directions to submit, half-yearly medical reports of them. Some were
convicted, some acquitted and trials were pending against some of them. While they had been
declared insane, no action for their release had been taken by the authorities for years to
come. In some cases, half yearly medical report had not been submitted. Seeing Callous and
Lethargic attitude of administrative authorities, the Court passed order to release them. The
Court noted that these prisoners are entitled to compensation from the State Govt. for their
illegal detention in contravention of Art. 21 of the constitution."80
In Chaitany Kalbagh v.
State of U.P.,81
the Supreme Court has disposed of two petitions by passing an order that
these matters fell within the domain of the State government and hence in first instance the
concerned government should be approached. The facts of these cases were that the killing of
many innocent people in encounters with police in U.P. in 1982. While the police was trying
to eliminate naxalities caused deaths of innocent people in police encounters in Tamil Nadu
in 1980-81.
It is submitted that people in general are poor, illiterate and lack of financial resources
not in position to claim compensation for their illegal detention and other such act against the
Government in civil Court. But the Supreme Court appears to have ignored humanistic
approach and plight of prisoners/victims as well as their family members in these cases. This
may result in pushing the concerned indigent people into further litigation against the State
Governments rather then being given their due relief, there and then.
79 AIR 1983 SC 339, (Bhagwati and D.A. Desai JJ). Also see Hussainara Khatoon v. State of Bihar, AIR
1979 1360 and Sant Bir v. State of Bihar, AIR 1982 SC 1470 at 1472. Court remarked that it is shocking
to the conscience that a perfectly sane person should have been incarcerated within the walls of a prison
for all most 16 years without any justification in law whatsoever. The question of compensation for his illegal
detention in contravention of Art. 21 remains yet open. 80 Ibid at 347 81 AIR 1989 SC 1452 ( Pathak and R.Mishra JJ ) in Masooda Praveen v. Union of India, AIR 2007 SC
1840; compensation for death in Army Custody was denied because record pertaining to incident show that
deceased was a Pakistani trained militant.
205
Riot Victim:
The right of a victim of crime to restitution has not yet merited statutory recognition. In this
area, the constitutional courts have been inclined to examine the plea of victims for redressal
of the losses suffered during violent incident including riots and caste clashes, the principle
that is evoked is that of culpable inaction under which the state and its agencies are expected
to anticipate the losses or damages to public and private property in certain situations over
which the potential victims have no control. The courts have gone as far as to find the state
liable only where a definite failure on its part act has resulted in the loss. The outbreak of
riots in the wake of the assassination of the Prime Minister on October 1984, resulted in
large-scale damage to the properties of members of the Sikh community in several places of
the country. In R. Gandhi v. Union of India82
, the Madras High Court, action on the reports
of a commissioner appointed by it to losses the property of the Sikh community in
Coimbatore. However, in Sri Lakshmi Agencies v. Government of Andhra Pradesh,83
the
Andhra Pradesh High Court declined to accept the prayer for compensation to the loss of life,
injury, destruction and loss of property as a result of the violence that followed the murder of
sitting member of the legislative assembly. The court explained that: “it is only when the
officers of the state do any act positively or fail to act as contemplated under law leading to
culpable inaction, that the state is liable to pay the damages, there should be a direct nexus for
the damages suffered on account of state action and if that is absent, Article 21 of the Indian
Constitution is totally inapplicable.” This is still an evolving area in which the courts are seen
to be treading cautiously.
Gang Rape with Foreign National:
Interestingly, a question before the Court was to be considered that whether a
foreign national can claim a compensation under the public law or private law for his/her
violation of fundamental right under Indian constitution ? And another question was whether
or not the State under an obligation to protect the life of persons who are not citizen? In
Chairman, Railway Board v. Chandrima Dass84
the Supreme Court laid down that where a
foreign national, a Bangladeshi woman was gang raped, compensation can be granted under
public law for violation of fundamental rights on the ground of domestic jurisdiction based on
constitutional provisions and human rights jurisprudence.85
The facts of the case were that a
practising advocate of the Calcutta High Court filed a petition under Art. 226 against the
82 AIR 1989 Madras 205. 83 AIR 1990 A.P. 504 84 AIR 2000 SC 988 85 Ibid
206
railway authorities of Eastern Railway, claiming compensation for the victim. Smt. Hanuffa
Khatoon, a Bangladesh national, who was gang raped by the employees of railways in a room
at yatri niwas of Howrah station of the Eastern Railway. The High Court awarded a sum of
Rs. 10 lakh as compensation to the victim. In appeal to the Supreme Court it was argued
on behalf of the state that the railways was not liable to pay compensation to the victim as
she was a foreigner and not an Indian national. Further, it was contended that for claiming
damages for the offence perpetrated on the victim, the remedy lay in the domain of private
law and not under public law and therefore, no compensation could have been awarded by the
High Court.
The Supreme Court negative these contentions by saying that rape was committed
by railway employees on a woman in building belonging to railways therefore, writ petition
filed by victim against the government for compensation is maintainable under Art. 226 of
the constitution and upheld the decision of High Court.”86
The Supreme Court concluded that
where public functionaries are involved and the matter relates to the violation of fundamental
rights or the enforcement of public duties the remedy would be available under the public
law, notwithstanding that a suit could be filed for damages under private law. But in this case
it was not a mere violation of an ordinary right of a person but the violation of fundamental
rights was involved as petitioner was a victim of rape which is violative of the fundamental
right of a person guaranteed under Art. 21 of the Constitution. According to the tenor of the
language used in Art. 21, it will be available not only to every citizen of this country, but also
to a 'person' who may not be citizen of the country.87
Thus, they also have the right to live, so
long as they are here, with human dignity.
AN OVERVIEW
To complete the present study the researcher has randomly conducted a Survey of
decided cases of Supreme Court and High Courts as reported in different law journals during
2008-2012. Out of the total 80 cases, 70 cases are decided by High Courts and 10 cases are
decided by Apex Court as indicated in Table 6.6. Data makes it clear that there is no set
criteria to award damages/compensation viz. it differs from case to case and facts to facts.
Our courts do not exercise these statutory powers as freely and liberally as would be desired.
Mostly in number of cases compensation is awarded from Public Fund which gives moral
86 Id at 990 87 Ibid
207
boosting to erring or corrupt officials. Due to this reason, the order for compensation must be
made from their own salaries not by public exchequers.
Supreme Court and various High Courts situated in India have decided large number
of cases and have given landmark judgements in awarding compensation to the victims and
dependents as per detail given in following tables:
TABLE NO. 6.1 SHOWING AWARDED COMPENSATION BY SUPREME
COURT AND HIGH COURTS DURING 2008- 2012
Sr.
No
YEAR CITATION NAME OF THE
CASES
FACTS ART./SEC. COMPENSATION
AWARDED
1 2012 2012 Cri. LJ
3953 SC
R. Mohan v.
A.K. Vijaya
Kumar
Dishonour
of Cheque
S. 357 5 Lac
2 2012 2012 Cri. LJ
4474 SC
Guru Basavaraj
alias Benne v.
State of
Karnataka
Ss. 279 &
304 A of
IPC
S. 357 No Compensation
3 2012 2012 Cri. LJ
SC 528
R. Vijayan v.
Baby & Anr.
Dishonour off
Cheque
S. 357 1 year imprisonment
& 5000/-
4 2012 2012 Cri.LJ
410 Del.
Ram Mehar
Singh v. State of
Nct of Delhi &
Ors.
Wrongful
detention
Arts. 21,
226
50,000/-
5 2012 2012 Cri.LJ
(NOC) 15
Del.
Court on its own
motion v. State &
Anr.
Custodial
death
Art. 226 3 Lacs
6 2012 2012 Cri.LJ
(NOC) 27
Chh.
Dukhuram v.
State of
Chhatisgrah
Custodial
death
Arts. 21,
226
1.5 Lac
7 2012 2012 Cri.LJ
4604 Ori.
Ramesh Das &
Anr. v. State of
Orissa
Custodial
death
Arts. 21,
226
3 Lac
208
8 2012 2012 Cri.LJ
3934 Chh.
Dr. Mehmood
Nayyar Azam v.
State of
Chhattisgarh &
Ors.
Custodial
Torture
Arts. 21,226 5 Lac
9 2012 AIR 2012
Gau. 113
The Chief
Secretary,
Government of
Manipur & Ors.
v. Smt. Naorem
Ongbi Rashmani
Devi & Ors.
Custodial
death
Arts. 21,
226
7.2 Lac
10 2012 AIR 2012
Mad. 189
Minor
Muthulakshmi v.
State of Tamil
Nadu & Ors.
Negligence
at the
school
Arts. 21,
226
3 Lac @ 12%
Simple Interest
11 2012 AIR 2012
Ori. 126
Kunj Parida v.
State of Orissa &
Ors.
Death of
undertrial
Prisoner
Arts. 21,226 5 Lac
12 2012 AIR 2012
SC 100
Muncipal
Corporation of
Delhi v. Uphaar
Tragedy & Ors.
Fire in
Uphaar
Cinema
Arts. 32,
226
18 Lac whose age
above 20
15 Lac age below
20
I Lac for injured
persons (193)
13 2012 AIR 2012
Ori. 53
Pratap Kumar
Nayak v. State of
Orissa & Ors.
Negligence
by Blood
bank
Arts. 21,226 3 Lac
14 2012 AIR 2012
HP 61
Jeetindera Singh
v. State of
Himachal
Pradesh
State
Liability
Arts. 21,
226
40,000/- @ 12%
per annum
209
15 2012 AIR 2012
SC 1751
Hardeep Singh v.
State of Madhya
Pradesh
Dacoity,
Forgery
Arts. 21, 32 2 Lac
16 2012 AIR 2012
SC 1030
Roy Fernandes v.
State of Gao &
Ors.
Unlawful
Assembly,
Murder
S. 357 3 Lac
17 2012 AIR 2012
AP 99
Banothi Bure Bai
v. Secretary, A.P.
Residential
Educational
Institutional
Society
Hyderabad &Ors.
Negligence
by School
Authorities
Arts. 21,
226
3 Lac
18 2012 AIR 2012
Chh. 111
Motimbai & Anr.
v. State of
Chhatisgarh &
Ors.
Custodial
death
Arts. 21,
226
Meagre sum of
50.000/-
19 2012 AIR 2012
Ori. 97
Banalata Dash v.
State of Orissa &
Ors.
State
Liability
Arts. 21,
226
3 Lac
20 2012 AIR 2012
Mad. 207
District Health
Officer
Fidamaneri,
Dharampur &
Ors v. Sounthani
& Ors.
Negligence,
a child
consumed
30 tablets of
multi
vitamins
Arts. 21,
226
70,000/-
21 2012 AIR 2012
(NOC) 318
Pat.
Vijay Singh &
Ors. v. State of
Bihar & Ors.
Death by
electrocution
Art. 226 2.5 Lac to each
claimant
22 2012 AIR 2012
Del. 190
Sattar Sheikh &
Anr.v. Municipal
Corporation of
Delhi
Negligence
by
Municipal
Corporation
Arts. 300,
226
6,97,623/-
210
23 2012 AIR 2012
Pat. 172
Rabindra
Chaudhary v.
The State of
Bihar & Ors.
Killed by
extremists
Arts. 21,
226
10.000/- & I Lac
ex-gratia
24 2012 2012 Cr.LJ
1136 Bom.
Guerrero Lugo
Elvta Grissel &
Ors.v. State of
Maharastra
Plea
bargaining
Sec. 265- E 55 Lac
25 2012 2012 Cr.LJ
(NOC) 216
Guj.
Bhavanbhai
Bhayabhai
Panelia v. State
of Gujarat
Rape S.357 Compensation
26 2011 2011 Cri L.J.
326 Gau.
Naisul Khatun v.
The State of
Assam & Ors.
Custodial
death
Arts.21, 226 1.50 Lac
27 2011 2011 Cri
L.J. 1541
Ker.
V.K.Abdul
Aselis v. State of
Kerala & Ors.
Lathi-charge
by police
Arts.21, 226 80,000/-
28 2011 2011 Cri.LJ
3968 Ker.
M.K.Musthafa
Haji v. Director,
Central Bureau
of Investigation,
New Delhi &
Ors.
Firing at Mob Arts. 21,
226
5 Lac
29 2011 2011 Cri.LJ
4570 Mad.
C. Murugesan v.
Prabhakaran and
another
Dishonour
of Cheque
S. 357 75000/-
30 2011 2011 Cri.LJ
4577
Uttarakhand
Sudhir Kumar v.
State & Another
Dishonour
of Cheque
S.357 3 Lacs (50% of the
deposit)
31 2011 2011 Cri.LJ
3442 Chh.
Afroz v. State of
Chhattisgarh &
Ors.
Illegal
detention
Art. 226 Compensation
awarded after
recording evidence
211
32 2011 2011 Cri. LJ
3646 Ori.
Biranchi Narayan
v. State of Orissa
& Ors.
Rape, Murder Art. 226,
4 Lac
33 2010 2010 Cri. LJ
(NOC) 1122
Ori.
Indramani Swain
v. State of Orissa
& Ors.
Custodial
death
Arts. 21,
226
2.5 Lac
34 2010 2010 Cri L.J.
2695 Kar.
Thimmappa &
Anr. V. State of
Karnataka
S.372 S. 357 10,000/-
35 2010 2010 Cri. LJ
379 SC
Bharat Amratlal
Kothari v.
Dosukhan
Samadkhan
Sindhi & Ors.
Illegal
detention
of animal
Art. 226 75,000 by each
respondent (1 to 6)
36 2010 2010 Cri. LJ
8 A.P.
Bolla Sivanagi
Reddy v. State of
Andhra Pradesh
Cruelty S.357 1,00,000 + 3,000
p.m.
Maintenance
37 2010 2010 Cri.
LJ 135 Mad.
P. Pugalenthi v.
The State of
Tamil Nadu &
Ors.
Custodial
death
Arts.21, 226
50,000
38 2010 2010 Cri. LJ
(NOC) 979
Gau.
Smt. Chandrapati
Debbarma v.
State of Tripura
& Ors.
Custodial
death,
Killed by
Personnel of
TSR
Arts. 21,
226
4 Lac
39 2010 AIR 2010
(NOC) 866
HP
Courts of its own
motion v. State
of Himachal
Prodesh
Negligence
on the part of
Municipal
Corporation
Art. 226 1 Lac
40 2010 AIR 2010
(NOC) 869
Pat.
Arjun Mishra v.
State of Bihar &
Ors.
18 years old
by died by
police firing
Arts. 21,
226
2.5 Lac
212
41 2010 AIR 2010
(NOC) 395
Del.
Madhu Kaur v.
Govt. of NCT of
Delhi & Anr.
Accident due
to damaged
Road
Arts. 21,
226
6.28.000/-
42 2009 2009 Cri. LJ
866 Mad.
Bammu v. State
of Tamil Nadu &
Ors.
Custodial
death
Art. 21 3,32.000/-
43 2009 2009 Cri. LJ
802 P&H
Anil Kumar v.
Vijay Kumar &
Ors.
Murder S. 357
No Compensation
44 2009 2009 Cri. LJ
1445 Jhar.
Sankari Masomat
& Anr. v. The
State of
Jharkhand & Ors.
Custodial
death (Murder
by Head
Warden of
Jail)
Arts. 21,
226
2.5 Lac
45 2009 2009 Cri. LJ
(NOC) 540
Ori
Ahalya Pradhan
v. State of Orissa
& Ors.
Custodial
death
Arts. 21,
226
3 Lac
46 2009 2009 Cri. LJ
2843 SC
Kaliben Rabari v.
State of Gujarat
& Ors.
Negligence S. 357 5 Lac
47 2009 2009 Cri. LJ
3073 MP
Pooran Singh v.
State of Madhya
Pradesh & Others
Illegal
detention
(State Govt.
is liable)
Arts. 21,
226
3 Lacs
48 2009 2009 Cri. LJ
(NOC) 1080
Mad.
M.A. Meeran
(died) by L.R’s
& Ors. v.
Government of
Tamil Nadu &
Ors.
Custodial
death
Arts. 21,
226
3 Lacs
49 2009 2009 Cri. LJ
(NOC) 823
All.
Rarindra Nath
Awasthi v. State
of Uttar Pradesh
Custodial
death
Arts. 21,
226
5 Lacs
213
& Ors.
50 2009 2009 Cri. LJ
(NOC) 954
MP
Bhaiya Lal v.
State of Ors.
Cruelty Art. 226 1 Lac
51 2009 2009 Cri. LJ
(NOC) 1068
Raj.
Smt. Saraswati
Devi v. State of
Rajasthan & Ors.
Art. 21,
Injuries in jail
and died due
to such
injuries
Art. 226 No Compensation
52 2009 2009 Cri. LJ
1543 SC
Dalbir Singh v.
State of Punjab
& Ors.
Custodial
death
Arts. 21, 32 No Compensation
53 2009 2009 Cri. LJ
1904 Jhar.
Tapti Sandhu v.
State of
Jharkhand & Ors.
72% burns in
custody
Arts. 21,
226
No Compensation
54 2009 2009 (2)
RCR (Cri.)
614 SC
State of Punjab
& Ors. v.
Paramjit Kaur &
Ors.
S. 304 of
IPC
Arts. 21, 32 1.5 Lac
55 2009 2009 Cri. LJ
2957 SC
Vijayan v.
Sadanandan &
Anr
Dishonour
of Cheque
S. 357 8.25 Lac & One
year RI
Imprisonment
56 2009 2009 (1)
RCR(Cri.)
543 Ker.
Shine Varghese
v.
State of Kerala
and another
Dishonour
of Cheque
S. 357 1 Lac
57 2009 2009 (1)
RCR (Cri.)
560 P& H
Krishan Kumar
and others v.
State of Haryana
-
Dowry
death,
cruelty
S. 357 1.05 Lac
58 2008 2008 Cri. LJ
2898 Ker.
P.V. Antony v.
State of Kerala &
Ors.
Negligence of
hostel
administration
Art. 226 5 Lac
214
59 2008 2008 Cri. LJ
3359 Ker.
C. Ganga & Ors.
v. Lakshmi
Ammal & Anr.
Dishonour
of cheque
S. 357 1 Lac
60 2008 2008 Cri. LJ
3281 MP
Hardeep Singh v.
State of Madhya
Pradesh & Ors.
Cheating Art.21 70,000/-
61 2008 2008 Cri. LJ
(NOC) 870
P&H
Court of its own
motion v. State
of Punjab
Custodial
death
Arts. 21,226 10 Lac
62 2008 2008 Cri. LJ
(NOC) 961
Mad.
Smt. Rohini
Lingam v. State
& Ors.
Custodial
Death
Arts. 21,
226
6 Lac
63 2008 2008 Cri. LJ
(NOC) 1103
Gau.
Ram Bahadur
Chetri @ Ramu
Chetri. & Ors. v.
State of Assam &
Ors.
Illegal
detention
Arts. 21,
226
1 Lac by respondent
& 5000/- by State
64 2008 2008 (8)
SCC 225
Manish Jalan v.
State of
Karnataka
S. 304 A S. 357 1 Lac
65 2008 2008 Cri. LJ
(NOC) 5 Ori.
Prabir Kumar
Das v. State of
Orissa & Ors.
Illegal
Detention
Arts. 21,
226
8 Lacs by State
66 2008 2008 Cri. LJ
4607 Gau.
Dr Ranjit Reang
v. State of
Tripura & Ors.
Assault
by Police
Arts. 21,
226
20,000/-
67 2008 2008 Cri. LJ
4455 P&H
Basant Singh v.
State of Punjab
& Ors.
Custodial
Death
Arts. 21, 226 3 Lacs
68 2008 2008 Cri. LJ
59 Pat.
Mahesh Ram &
Ors v. State of
Bihar & Ors.
Sovereign
immunity
Arts. 21,
226
1 Lac to each
petitioner (1 to 3)
69 2008 2008 Cri. LJ Rajammal v. Custodial Arts. 21, 5 Lacs enhanced
215
2280 Mad. State of Tamil
Nadu & Ors.
Death 226 from 3 Lacs
70 2008 2008 Cri. LJ
(NOC) 556
HP
Santosh Kumari
v. State of
Himachal
Pradesh & Ors.
Custodial
death
Arts. 21,
226
2 Lacs
71 2008 2008 Cri. LJ
(NOC) 558
AP
Pittala
Subramanyam v.
State of Andra
Pradesh
Dishonour
of cheque
S. 357 1 Lac
72 2008 2008 (8)
SCC 505
D. Prusushotama
Reddy & another
v. K. Sateesh
Dishonour
of Cheque
S. 357 4 Lacs
73 2008 2008 Cri. LJ
(NOC) 63
Bom.
Vishnu Ghule
etc. v. State of
Maharashtra
Murder S. 357 Not fit for
compensation
74 2008 2008 Cri. LJ
(NOC) 1034
Bom.
Ankush Desu
Rathod etc. v.
State of
Maharashtra
Rape S. 357 No compensation
75 2008 2008 (2)
RCR (Cri.)
451
P&H
Charanjit Singh
v. Brij Mohan
Gupta and
Another
Dishonour
of Cheque
S. 357 30,000/-
76 2008 2008 RCR
(Cri.) 439
P&H
Mazid v. State of
Haryana
Ss. 304A, 279 S. 357 35,000/-
77 2008 2008 (2)
RCR (Cri.)
569 P&H
Sandeep Mittal v.
Pradeep Bhalla
Dishonour
of Cheque
S. 357 14,000/-
78 2008 2009 (1)
RCR (Cri.)
Shri Antonio
Sebastiao
Art. 21
S. 357 25,000/-
216
694 Mervyn
Degbertde
Piedade Pacheco
v. State of Goa &
Ors.
79 2008 2008 (2)
RCR (Cri.)
294
State of Punjab v.
Harinder Singh
@ Raju
S. 324 of
IPC
S. 357 25,000/-
80 2008 2008 (2)
RCR (Cri.)
441
Rajinder Kumar
v.
State of Haryana
Ss. 279,
304-A
S. 357 35,000/-
Source- Cr.LJ (2008-2012), AIR (2008-2012), SCC (2008-2009), RCR (Cri.) (2008-2009).
Table 6.2 Trends of Compensation Cases under Constitutional and Statutory
Provision 2008 - 2012
Sr. No Year Number of Cases under
s. 357 of Cr. P.C.
Number of Cases
under Arts. 32, 226
of Constitution
Total number
of Cases
1 2008 11 11 22
2 2009 6 11 17
3 2010 2 7 9
4 2011 2 5 7
5 2012 6 19 25
Total 28 55 80
Source- Cr.LJ (2008-2012), AIR (2008-2012), SCC (2008-2009), RCR (Cri.) (2008-2009)
217
Figure 6.1 Trends of Compensation Cases under Constitutional and Statutory
Provisions: 2008 - 2012
The Table 6.2 and Figure 6.1 show that the number of cases in which compensation was
awarded witnessed fluctuations as no precise trend can be discerned from 2008-2012. In
2008, where 22 cases got compensation, later on the number declined but in 2012 it again
increased to 25. It is worth noticeable that majority of the cases have been reported in the
Arts. 32, 226 of constitution while s.357 that is related to compensation provisions have only
few cases. The low number of cases in s.357 Cr.P.C. shows that common people reluctance to
go for it as constitutional remedy is more successful in getting compensation.
Table 6.3 Cases Reported under Cr. P.C and Constitution 2008 - 2012
Sr. No Name of Law Number of
Cases
1 S. 357 of Cr.P.C. 24
2 S. 265 E of Cr.P.C. 1
3 Arts. 32, 226 of Constitution 55
Total 80
Source- Cr.LJ (2008-2012), AIR (2008-2012), SCC (2008-2009),
RCR (Cri.) (2008-2009).
0
5
10
15
20
25
30
2008 2009 2010 2011 2012
Nu
mb
er o
f C
ase
s
Year
Number of Cases under
Constitution
Number of Cases under
s.357 Cr. P.C.
218
Figure 6.2 Cases Reported under Cr. P.C and Constitution 2008 - 2012
In the time period of 2008 to 2012 Table 6.3 and Figure 6.2 exhibits that most of the cases in
which compensation was awarded come under Arts. 32, 226 which come under civil law.
While s. 357 of Cr. P.C. which specifically deals with victim compensation has only a small
number of cases reported in above said period. It shows the lack of awareness among the
victims and lack of judiciary’s will to apprise people with specific law which deals with
compensation.
Table 6.4 Cases Reported According to Nature of Offence: 2008 - 2012
Sr.No. Nature of Offences Number of Cases
1. Offences under Constitution 49
2. Offences under IPC 20
3. Dishonour of Cheque 11
4. Total 80
Source- Cr.LJ (2008-2012), AIR (2008-2012), SCC (2008-2009), RCR (Cri.) (2008-2009).
Figure 6.3 Cases Reported According to Nature of Offence: 2008 - 2012
0
10
20
30
40
50
60
S. 357 of Cr.P.C. S. 265 E of Cr.P.C. Constitution
Nu
mb
er o
f C
ase
s
Name of Law
219
The Table 6.4 and Figure 6.3 related to nature of offences in which compensation was
awarded from 2008-12 shows that most of the cases falling under Art. 21 and personal liberty
are successful in getting compensation. Whereas offences under IPC and dishonour of cheque
have only few cases reported in which compensation was awarded. It shows the inclination of
people filing their cases getting compensation under civil law more than Cr. P.C.
Table 6.5 Amount Awarded in Different Compensatory Judgements 2008 - 2012
Sr. No Amount of Compensation Number of Cases
1 Below 50,000 9
2 50,000 – 1 Lakh 8
3 1 Lakh – 5 Lakh 37
4 5 Lakh – 10 Lakh 14
5 10 Lakh – 20 Lakh 1
6 20 Lakh & Above 2
7 No compensation 9
Total 80
Source- Cr.LJ (2008-2012), AIR (2008-2012), SCC (2008-2009),
RCR (Cri.) (2008-2009).
0
10
20
30
40
50
60
Offences under
Constitution
Offences under IPC Dishonour of Cheque
Nu
mb
er o
f C
ase
s
Nature of Offence
220
Figure 6.4 Amount Awarded in Different Compensatory Judgements 2008 - 2012
The Table 6.5 and Figure 6.4 related to amount of compensation awarded during 2008 to
2012 shows that large number of cases have got compensation amount lying between 1 lakh
to 10 lakh. There are only 15 cases in total where compensation of amount less that 1 lakh
was awarded. The cases in which high amount i.e. more than 10 lakh was seek are few in
numbers. The cases in which compensation was requested but was not awarded by the court
are 9. It shows that less than 5 lakh compensation is awarded in most of the cases but above
this amount number of cases are quite low.
Table 6.6 Number of Reported Cases in Different Reporters Decided by Supreme
Court and Respective High Courts
Sr. No. Court Name Number of Cases
1 Supreme Court 9
2 Allahabad High Court 1
3 Andhra Pradesh High Court 3
4 Bombay High Court 4
5 Calcutta High Court 0
6 Chattisgarh High Court 4
7 Delhi High Court 4
8 Gauhati High Court 5
9 Gujarat High Court 1
0
5
10
15
20
25
30
35
40
Nu
mb
er o
f C
ase
s
Amount of Compensation
221
10 Himachal Pradesh High Court 3
11 Jammu and Kashmir High Court 0
12 Jharkhand High Court 2
13 Karnataka High Court 1
14 Kerala High Court 5
15 Madhya Pradesh High Court 3
16 Madras High Court 10
17 Manipur High Court 0
18 Meghalaya High Court 0
19 Orissa High Court 8
20 Patna High Court 3
21 Punjab and Haryana High Court 12
22 Rajasthan High Court 1
23 Sikkim High Court 0
24 Tripura High Court 0
25 Uttrakhand High Court 1
Source- Cr.LJ (2008-2012), AIR (2008-2012), SCC (2008-2009), RCR (Cri.) (2008-2009).
India has 1 Supreme Court and 24 High Courts but it is saddening to observe from
table 6.6 that most of the High Courts have only a few number of reported cases in which
compensation was awarded during the study period. It proves second hypothesis which states
that the courts have seldom invoked their enabling statutory power to compensate victims of
crime. As shown from this table that Madras High Court and Punjab and Haryana High Court
each have 10 such cases, followed by Orissa High Court with 8 cases, Gauhati with 5 and
Kerala with 5 cases. Most of the other states either has no such cases to their credit or has
awarded compensation in only 1 case during the study period i.e. Gujarat High Court,
Karnataka High Court. It is worth noticeable that the State HC where no case is reported
came into existence in 2012-13 only.
C—COMPENSATION THROUGH NHRC
In India, National Human Rights Commission was set up under the Act88
for the
protection and promotion of human rights. The National Human Rights Commission came
into being through an Ordinance promulgated on 28th September, 1993 presumably under
88 Protection of Human Rights Act, 1993.
222
some foreign pressure.89
The main function of the National Human Rights Commission90
is to
inquire into violations of human rights and negligence in the prevention of such violation by
State machinery.91
Since its inception the Commission has started receiving numerous
complaints of violation of human rights. It can also intervene in a judicial proceeding
involving allegation of human rights violations, visit any State institution, promote research
on human rights, spread human rights literacy, encourage social activism and review the
existing human rights laws and recommend measures for their effective implementation.92
The Commission enjoys the powers of a civil court while inquiring into the complaints under
the Act.93
It enjoys investigation power and can utilize the services of any governmental
investigative agency.94
Functions and Powers of NHRC
There are wide range of functions envisaged for the Commission under s.12 of the Act95
, ‘all
or any’ of which are to be performed by it. These functions are:-
(a) to inquire, on its own initiative or on a petition presented to it by a victim or
any persons on his behalf, into complaints of-
(i) violation of human rights or abetment thereof; or
(ii) negligence in the prevention of such violation, by a public servant;
(b) to intervene in any proceeding involving any allegation of violation of human
rights pending before a court, with the approval of such court;
(c) to visit, under intimation of the State government, any jail of any other
institution under the control of the State government, where persons are
detained or lodged for purposes of treatment, reformation or protection to
study the living condition of the inmates and make recommendations thereon;
(d) to review the safeguards provided by or under the Constitution or any law for
the time being in force for the protection of human rights, and, recommend
measures for their effective implementation;
89 K. I Vibhute, Criminal Justice: A Human Rights Perspective of the Criminal Justice Process in
India, Eastern Book Company, Lucknow, First Edition 2004 at 141. 90 herein after NHRC 91 Supra note 88, S. 12 92 Ibid 93 Id, S.13 94 Id, S. 14. 95 Supra note 88
223
(e) to review the factors, including acts of terrorism, that inhibit the enjoyment of
human rights and recommend appropriate remedial measures;
(f) to study treaties and other international instruments on human rights and make
recommendations for their effective implementation;
(g) to undertake and promote research in the field of human rights;
(h) to spread human rights literacy among various sections of the society and
promote awareness of the safeguards available for the protection of these
rights through publications, the media, seminars and other available means;
(i) to encourage the efforts of non- governmental organizations and institutions
working in the field of human rights; and
(j) to carry out such other functions as it may consider necessary for the
promotion and protection of human rights.
Procedure During or After the Inquiry-
The Commission is empowered to take the following steps during or upon the completion of
an inquiry96
:
1) The Commission may recommend to the concerned Government or authority: (i)
to make payment of compensation or damages to the Commission may consider
fit;
(ii) to initiate proceedings for prosecution or such other suitable action as the
commission may deem fit against the concerned person;
(iii) to take further action as it may think fit where the inquiry disclosed the
commission of violation of human rights or negligence in the prevention of
violation of human rights or abetment thereof by a public servant..
2) The Commission may provide a copy of the inquiry report to the petitioner or his
representative.
3) The Commission may recommend the concerned government or authority the
initiation of proceedings for prosecution or such other action as the Commission
may deem fit against the person responsible for the violation of human rights.97
4) It may approach the Supreme Court or the High Court for such direction, orders or
writs as that Court may deem necessary.98
96 Agarwal, H. O., International Law & Human Rights 965, 16th edition, Central Law Publications
(2009) 97 Supra note 88, S. 18 (1).
224
5) Recommend to the concerned government or authority for the grant of appropriate
interim, including monetary relief, to the victims or the members of his family.99
ROLE OF NHRC TOWARDS VICTIM COMPENSATION-
One of the important functions of the NHRC is to inquire into the violation of human
rights and negligence in the prevention of such violation by State machinery. Since its
inception the Commission has started receiving numerous complaints of violation of human
rights. The number of complaints registered during year 1993-94, was 496 and corresponding
figure from the year 1994 to 2010 as shown in table given below:
Table 6.6: showing yearly complaints
YEARS NOS. OF COMPLAINTS
1993-94 496
1994-95 6,987
1995-96 10,195
1996-97 20,514
1997-98 36,791
1998-99 40,724
1999-2000 50,634
2000-2001 71,555
2001-2002 69,083
2002-2003 68,779
2003-2004 72,990
2004-2005 74,401
2005-2006 74,444
98 Id, S.18 (2) 99 Id, S. 18 (3)
225
2006-2007 82,233
2007-2008 1,00,616
2008-2009 90,946
2009-2010 82,021
Source: www.nhrc.nic.in
The increase bears evidence of the growing determination of the people of India to
defend their rights and their faith in the instrumentality of the commission to do so.100
In case
of commission of violation of human rights or negligence in prevention of violation of human
rights by public servants s. 18 (3) of the Act,101
impart the commission to recommend to the
concerned Government or authority for the grant of such immediate interim relief to the
victim or the members of his family as the commission considers appropriate. Under this
jurisdiction NHRC is playing a significant role to establish an emerging compensatory
jurisprudence for the victims. And during the period from 1 April 2009 to 31 March 2010, the
Commission recommended Rs.6,29,33,000 as payment of monetary relief/compensation to
the victims/next of kin of the deceased in 398 cases. Out of these 398 cases, the Commission
also recommended disciplinary action against the delinquent police officials/public servants
in 5 cases. Compliance reports were received in 132 cases and a total amount of Rs.
1,98,83,000 was paid to the victims/next of kin of the deceased.102
The following table shows
the number of cases that has been declared by NHRC in favour of victims by recommending
monetary relief to them:
TOTAL NUMBER OF CASES WHERE NHRC RECOMMENDED MONETARY
RELIEF/DISCIPLINARY ACTION DURING 2009-2010
S.No. Name of
State/UT
No. of cases in
which
Recommendations
Amount
Recommended
(Rs.)
No. of cases where
Recommendations
have been Complied
with
Amount
paid(Rs.)
No. of cases
Pending for
Compliance
Amount
Recommended in
the cases Pending
for Compliance
1 2 3 4 5 6 7 8
1 Andhra
Pradesh
Monetary relief in
17 cases including
5075000/- 8 3375000/- 9 including
disciplinary
1700000/-
100 Rai, H. S., “Compensatory Jurisprudence and Victims of Crime” 338, Cr.LJ, (2004) 101 Supra note 88 102 NHRC, Annual Report 2009-10, para 4,404
226
disciplinary action
in 1 case
action in 1
case
2 Arunachal
Pradesh
Monetary relief in 1
case
100000/- 0 --- 1 100000/-
3 Assam Monetary relief in 7
cases including
disciplinary action
in 1 case
2350000/- 0 --- 7 including
disciplinary
action in 1
case
2350000/-
4 Bihar Monetary relief in
29 cases including
disciplinary action
in 1 case
5385000/- 7 1025000/- 22 including
disciplinary
action in 1
case
4360000/-
5 Chhattisgarh Monetary relief in 4
cases
400000/- 1 100000/- 3 300000/-
6 Delhi Monetary relief in
15 cases
1549000/- 10 905000/- 5 644000/-
7 Goa Monetary relief in 1
case
100000/- --- 1 100000/-
8 Gujarat Monetary relief in
15 cases
2845000/- 10 1845000/- 5 1000000/-
9 Haryana Monetary Relief in
15 cases
2070000/- 6 725000/- 9 1345000/-
10 Himachal
Pradesh
Monetary relief in 1
case
100000/- --- --- 1 100000/-
11 Jammu &
Kashmir
Monetary relief in 4
cases
1200000/- 1 200000/- 3 1000000/-
12 Jharkhand Monetary relief in
19 cases
2210000/- 5 650000/- 14 1560000/-
13 Karnataka Monetary relief in
12 cases
1950000/- 4 800000/- 8 1150000/-
14 Kerala Monetary relief in 2
cases
400000/- 1 300000/- 1 100000/-
15 Madhya
Pradesh
Monetary relief in 7
cases including
disciplinary action
in 1 case
850000/- 1 50000/- 6 including
disciplinary
action in 1
case
800000/-
16 Maharashtra Monetary relief in 6
cases
1910000/- --- --- 6 1910000/-
17 Manipur Monetary relief in 3
cases
575000/- --- --- 3 575000/-
18 Mizoram Monetary relief in 1
case
650000/- --- --- 1 650000/-
19 Orissa Monetary relief in 2
cases
600000/- 1 100000/- 1 500000/-
20 Puducherry Monetary relief in 1
case
100000/- --- --- 1 100000/-
21 Punjab Monetary relief in 8
cases
1320000/- 1 500000/- 7 820000/-
22 Rajasthan Monetary relief in 1715000/- 7 1015000/- 3 700000/-
227
10 cases
23 Tamil Nadu Monetary relief in
12 cases
1565000/- 4 500000/- 8 1065000/-
24 Tripura Monetary relief in 1
case
500000/- --- --- 1 500000/-
25 Uttar Pradesh Monetary relief in
193 cases including
disciplinary action
in 1 cases
25479000/- 59 7053000/- 134
including
disciplinary
action in 1
case
18426000/-
26 Uttarakhand Monetary relief in 5
cases
540000/- 4 440000/- 1 100000/-
27 West Bengal Monetary relief in 7
cases
1395000/- 2 300000/- 5 1095000/-
TOTAL Monetary relief in
398 cases including
disciplinary action
in 5 cases
62933000/- 132 cases 19883000/- 266 cases
including
disciplinary
action in 5
cases
43050000/-
Source- Annual Report of NHRC 2009- 2010
II- Illustrative Cases-
The Commission is a vital proactive link between the victims of human rights
violations and the redressal machinery i.e. the judiciary. The Commission has its own
statutory mechanism for investigating complaints of human rights violations. During the
preceding years, the Commission received complaints of multiple nature alleging human
rights violations more particularly concerning custodial deaths, police excesses, illegal
detentions, degrading treatment to women including human rights violations by armed forces.
In the following pages, an attempt is made to study a selective number of cases where the
Commission took cognizance of the matter and also gives monetary relief to the victims of
crimes.103
1) DEATH BY ELECTROCUTION IN DELHI104
In this case, NHRC has recommended105
that the Board of Directors of the Tata
Power Delhi Distribution Ltd. (TPDDL) pay rupees 3 lac each to the next of kin of the
three persons who died after electrocution caused due to negligence of the DISCOM.
The Commission has asked the CEO of the company to submit a compliance report
along with proof of payment within six weeks after the receipt of the directions.
103 Sharma, B.R. & Sharma, P., “National Human Rights Commission at work: A critical study of its role
and performance” 146, Amritsar Law Journal, Vol. X (2001) 104 www.nhrc.nic.in visited on March 23rd.,2013 105 Dated: November, 8th, 2012
228
2) DEATH OF EIGHT WORKERS IN CRACKER FACTORY IN UTTAR
PRADESH106
In this case, the Commission had recommended107
the UP Government to pay a total
of Rs. 24 lakhs as monetary relief, with Rs. 3 lac each to the next of the kin of the
eight workers who died in an explosion inside a cracker factory at Saharanpur in the
State.
3) ASSAULT BY BSF PERSONNEL IN WEST BENGAL108
In it NHRC had recommended109
that the Ministry of Home Affairs, Government of
India pay rupees five lakh as monetary relief to the next of kin of Masud Rana Sarkar,
who died in an assault by the BSF personnel in Dakshin Dinjapur Belurghat, West
Bengal, and rupees fifty thousand each to his three injured family members in the
incident. It means the total compensation recommended by the Commission is 6.5
lakhs
4) FIRING BY BSF PERSONNEL IN MIZORAM110
In this case the Commission had recommended111
that the Ministry of Home Affairs,
Government of India pay Rupees 3 Lakhs as monetary relief to the next of kin of
Gubalya Chakma who died in an incident of indiscriminate firing by the BSF
personnel of the 105th Battalion in District Lunglei, Mizoram on the 15th April, 2006.
It has also asked the Ministry to pay Rupees Fifty thousand each to the seven injured
in the incident.
5) CUSTODIAL DEATH OF BURMAN MORAN IN ASSAM112
The National Human Rights Commission had recommended113
that the government of
India pay a compensation of Rupees five lakhs to the next of kin of Burman Moran
who died on the 19th February, 2003 due to torture by the personnel of 6th Jat
Regiment, Assam. Burman Moran was apprehended by the Army on the 5th
106 Supra note 104 107 Dated: January 8th, 2010. 108 Supra note 104. 109 Dated : January 4th, 2010. 110 Supra note 104. 111 Dated : December 29th, 2009. 112 www.nhrc.nic.in visited on December 12th, 2012. 113 Dated : October 30th, 2009
229
February, 2003 on suspicion on having links with ULFA extremists. On the next day,
Hawaldar, Bunty Ram of the 6th Jat Regiment where FIR No. 18/2003 under various
sections of the IPC was registered against him, produced him at police station
Doodooma. When he was sent to the jail on the 8th February, he had multiple injuries
on his body which where allegedly caused by the Army personnel and succumbed to
them. The Deputy Commissioner, Dibrugarh, Assam filed a complaint in the matter to
the NHRC. After inquiry, the Commission's vide proceedings under the case no.
158/3/2002-2003-cd dated 29th April, 2009 came to the conclusion that Burman
Moran died, prima-facie, due to torture by the Army personnel. A show cause notice
was issued to the Secretary, Ministry of Defence, Government of India. No response
to the show cause notice having been received, a reminder was issued to him on the
30th July, 2009 saying that in case no response was received, the Commission would
presume that the government had nothing to say against the notice. Subsequent to this,
the Ministry of Defence sought time up to the 25th September, 2009 for submitting a
report in the matter. However, as there was no response till the 27th October, 2009,
the Commission has presumed that the Ministry of Defence has nothing to say against
the show-cause notice and recommended through the Defence Secretary that the
Government of India pay the compensation to the next of the kin of the deceased
Burman Moran .The Commission has also asked the Defence Secretary to provide
information regarding the present posting of the 6th Jat Regiment to the
Superintendent of Police, Tinsukhia at the earliest so that progress is made in the
investigation of FIR
6) DEATH DUE TO MEDICAL NEGLIGENCE IN KERALA114
In it, the Commission observed that it is a serious case of violation of Raju’s human
rights, who lost his life due to medical negligence and recommended that the
Government of Kerala pay rupees three lakhs as monetary relief to the next kin of the
deceased.
7) DEATH OF NUSRAT IN FAKE ENCOUNTER IN UTTAR PREDESH115
Nusrat was killed in an encounter by the local police in Ghaziabad, Uttar Pradesh. He
was picked up by the local police from his house on 22nd
August, 2004 at about 9.00
p.m.The police claimed that it had to open fire in self defence, when Nusrat fired from
114 Human Rights News Letter, Vol. 16 No.12, December 2009 at 2-3. 115 Ibid.
230
his pistol at the police party. The Commission on the consideration of report and
related material, observed that the circumstances were totally against the police as
there was no forensic evidence provided to suggest that Nusrat used his pistol to fire
at the police party. Therefore, the Commission recommended that the Government of
Uttar Pradesh pay rupees five lakh as monetary relief to the next kin of Nusrat along
with a compliance report.
8) DEATH IN FIRING BY POLICE CONSTABLE IN UTTAR PRADESH116
The National Human Rights Commission has recommended117
a monetary relief of
five lakh rupees to the next kin of Sunil Kumar Bharadwaj who was killed in
indiscriminate firing by the Constable of 20th Battalion of PAC on the 20th February,
2005 in Uttar Pradesh. The Commission took up the matter on a complaint filed by
Munni Lal, father of deceased Sunil Kumar. The Commission observed that Sunil
Kumar was the sole earning member of his family and lost his life for no fault of his.
Therefore, the family of the poor victim should be adequately compensated so that
they may lead a life of dignity
9) DEATH IN POLICE CUSTODY IN DELHI118
The National Human Rights Commission has recommended119
monetary relief of
three lakh rupees to the next of kin of Inder alias Bengali who died in Delhi Police
custody, in the night intervening 5th and 6th October, 2006. It was alleged in a
complaint to the Commission that Inder was picked up from his house in the night and
beaten severely at Police Station, Mayur Vihar resulting in his death.
10) POLICEMEN TURN ROBBERS AND KILL INNOCENT CITIZENS IN
BIHAR120
In this case the policemen turn robbers and kill innocent cititzens in Bihar, The
NHRC recommended that the state government pay immediate interm relief of Rs. 10
Lacs to Smt. Dhawan without prejudice to her private law rights damages.
11) ALLEGED DEATH OF 125 CHILDREN IN PHULBANI DISTRICT IN
ORISSA121
116 Supra note 112 117 Dated : August 19th, 2009 118 www.nhrc.nic.in visited on October 7th, 2009. . 119 Dated : July 29th, 2009 120 NHRC Annual Report 1998-99 121 NHRC Annual Report (1994-95) at 37-38
231
In this the NHRC directed the State Government to pay Rs.6,52,000/- as
compensation to 125 tribal families whose children had died. The State Government
showed its inability to pay compensation, citing various reasons. The Commission
while understanding the limitations of the State Government reiterated had in fact
occurred and thus had to be compensated for, thus the Commission gave an extension
of one month for payment of compensation.
12) CUSTODIAL DEATH OF SHRI UDAYAN IN KERALA122
The complaint Dr. Xavir Paul alleged that Shri Udayan had died in police custody at
the Mannarghat police station on 20 January, 1994. This was brought to the notice of
the Commission. Then the commission recommended that:-
i) That a case be registered against the police officials responsible and be prosecuted.
ii) A compensation of Rs.1,00,000/- be paid to the family of the victim.
iii) The State Government complied with the recommendations of the Commission in
toto.
13) ALLEGED RAPE OF SMT. BHANWARI DEVI IN RAJASHATHAN123
In this case the Commission took suo moto action and called for a report from the
Rajasthan Government. The Commission was informed that a woman’s organization
‘Vishakha’ had filed a writ petition in the Supreme Court by way of Public Interest
Litigation for better and secure conditions of work for women, also a fair trial or
inquiry in Smt. Bhanwari’s case.
14) COMMISSION TAKES UP CASES OF CUSTODIAL DEATH IN UTTAR
PARDESH124
In pursuance of the Amnesty International Report on ‘Deaths’ in police custody in
India in 1994 in respect of custodial death in U.P. the Commission issued a notice. In
reply to the notice, a senior official of the U.P. State Government sent a report
containing details of all cases; one such case is illustrated below:-
122 NHRC Annual Report (1996-97) at 67-68, See also NHRC v. State of Arunachal Pradesh, (1996) 1
SCC 742 123 NHRC Annual Report (1995-96) at 54-55 124 Id at 48
232
The officer in-charge of Kunwargaon police station and some other policemen
illegally detained and tortured Shyambir Singh Desraj and Dharam Vir Singh between
3 and 5 September, 1994. Also on 12 September, Desraj was burnt. The Commission
found it to be a custodial death and observed that the police tempered with the records
and showed the arrest to have been taken place on 12 September, 1994.
A prima-facie case had been made out against the S.H.O., the sub-inspector,
head constable and a number of constables but no prosecution had taken place. The
Commission order noted that the case be sent to court for prosecution of the accused,
simultaneously recommending the payment of Rs. 3,00,000/- as compensation to the
next of kin of the deceased, recovering whole or part of this money from the service
dues of errant police officials.
CONCLUDING REMARKS
It is, thus, evident that the fragmented legal framework providing for compensation by
an offender to his victims for loss suffered or injury caused by commission of the offence is
inadequate. It does not provide for a comprehensive legislative scheme for either
compensating victims of crime (for any ‘loss’ and physical, mental, or psychological ‘injury’)
or the payment of ‘compensation’ and ‘specified amount’ awarded to them. It neither
mandates courts to compensate the victims nor creates any legal right in their favour. It is
entirely left to their (courts’) discretion to compensate victims of crime as well as to initiate
legal action to recover the fine, out of which compensation is ordered, or the specified
amount of compensation from the offender to pay it to crime victims. The whole scheme of
award and payment of compensation in India thus solely depends upon the sweet will of
courts.
The Court has mostly awarded compensation on rationality basis. In number of cases
compensation is awarded from Public Fund which gives moral boosting to erring or corrupt
officials. Due to this reason, the order for compensation must be made from their own
salaries not by public exchequers. Almost in all illustrative cases regarding the award
compensation on the basis of differentiation is not clear. Even, if common law ‘notions’
require the compensation to be victim-based (i.e. poor lives getting less than rich live), the
Jurisprudence of Supreme Court needs to be violation of rights based. The purpose of
compensation is not just to restore the victim life. It is also ‘exemplary’ in nature without
obviating its discretion to individuate principles and recommendatory sums, some thresholds
233
have to be set. In fact such arbitrary compensation look more like a charity. Broadly speaking
even in the cases where compensation matters has been left at state governments remain
pending for years in the absence of judicial monitoring of the proceedings. The Court has
moved through judicial activism one step forward but two steps backward in the
compensatory jurisprudence for public wrong.
It also subsequently reiterated its concern by observing, that ‘it is regrettable, our
courts do not exercise their statutory powers under this section as freely and liberally as could
be desired’. The Supreme Court of India also observed that courts in India have seldom
invoked Section 357, Cr.P.C., to compensate victims of crime. It observed:
“it is an important provision but Courts have seldom invoked it.
Perhaps due to ignorance of the object of it…….. It may be noted that this
power of Courts to award compensation is not ancillary to other sentences
but it is in addition thereto. 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 as 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.”125
An analysis of above cases laws gives an indication that the courts in India, at least
the higher level, have started realizing the importance of the victim and the necessity to
ameliorate the plight of the victim to the extent possible by restitution.
On the other hand, NHRC is recommendatory body, it has no power to take any
binding decisions. It has to depend either on the Apex Court or High Court or the government
concerned. Its recommendations have no legal weight. The Commission receives thousands
of complaints from individuals and civil liberties groups and in a majority of cases it calls for
information or report from the government concerned. In most of the cases it uses the ‘post
office’ procedure which consists of asking the state governments to investigate the incidents
of human rights violations and inform it about the action taken. In some cases it asks the CBI
to investigate and report. The investigative power possessed by it is very rarely exercised.
125 Supra note 16 at 2137
234
The principles on which the commission had acted in computing interim compensation are
not clear. Beyond, that the complaint jurisdiction displays a considerable eclecticism and
randomness. In few cases the commission has approached the courts to implements their
recommendations. NHRC has done good job in providing relief to victims of crime. This
needs to further strengthen of NHRC.