[Victim compensation scheme] Victims entitled to compensation even for crimes that occurred prior to scheme: Kerala High Court

"..cannot be oblivious of the agony stricken face of the victim and the trauma and travails such victims have undergone, especially when their offenders have not even been identified or traced out or a trial conducted.."
[Victim compensation scheme] Victims 
entitled to compensation even for crimes that occurred prior to scheme: Kerala High Court
Kerala High Court

The Kerala High Court last week ruled that the provisions under Code of Criminal Procedure (CrPC) pertaining to compensation scheme for victims [Section 357A(1)(4) and (5)] of crime are substantive in nature and would operate "even prior to the coming into force of the said provision."

A Bench of Justice Bechu Kurian Thomas described the provisions as a prospective benefit given based on an antecedent fact.

"...While interpreting Section 357A(4) Cr.P.C., this Court cannot be oblivious of the agony stricken face of the victim and the trauma and travails such victims have undergone, especially when their offenders have not even been identified or traced out or a trial conducted. The agonizing face of the victims looms large upon this Court while considering the question raised for decision..", the Court observed.

Describing the sums due under Section 357A as rehabilitative, the Court stated:

“With the advent of the philosophy of victim compensation, with its avowed purpose not to award damages analogous to those in cases of tortious liability, but to give solace, by way of compensation out of the public purse, for the injury sustained, whether the offender had been brought to trial or not, a new stakeholder, in the criminal law, was ushered in.”

The Court was hearing the State’s appeal against an Alappuzha District Legal Services Authority's direction to pay compensation to the family of a person who lost his life in a motor accident which took place in 2008. The trial in the case had not yet commenced.

Section 357A(4) of CrPC states that where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.

The State claimed that it could not be expected to pay a compensation under Section 357A for an act that took place before it entered into force. The counsel underscored that Section 357A was introduced by a 2008 amendment and came into force in the succeeding year. The application for compensation was made to the DLSA in 2013, in terms of the provision.

The counsel also submitted that construing the provision to operate retrospectively would impose too heavy a burden on the State’s financial resources and was opposed to the statutory scheme.

On the other hand, the court-appointed lawyer for the DLSA and other respondents, as well as the Amicus Curiae, asserted that the provision, being beneficial ought to operate retrospectively as well. The provision did not indicate that it could only operate prospectively, it was argued.

Additionally, it was contended that the right to compensation was inherent in Article 21 of the Constitution.

Agreeing with these submissions, the Court reasoned that the provision created a right in favour of the victim and was, therefore, a substantive provision of law.

Since it was introduced to further the State’s humanitarian responsibility to assist victims of crime, the Court opined that it could operate to a past event as well. When the application for compensation concerned an event that occurred prior to the scheme’s commencement, any grant of compensation would be an extension of a prospective benefit to a past event, as opposed to retrospective operation.

The Court explained:

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

On these terms, the appeal was dismissed and the state directed to pay compensation.

[Read Judgment]

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District Collector, Alappuzha v. DLSA and Ors..pdf
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