In a landmark judgement in December 2020, the Delhi High Court upheld the right to restitution for victims of crime. This judgement, delivered in the case of Karan vs. State NCT of Delhi, is seen as a social reform and its impact on victim jurisprudence is expected to be far-reaching. Delhi is set to be the first city where victims of crime (or their families) are likely to be financially compensated by the person convicted of the crime.
The Case On June 15, 2017, Karan, Sunny, and a juvenile dragged Gulfam out of his house to a nearby park and killed him. Gulfam suffered fatal injuries. Both the accused were charged for offences under Sections 302/34 IPC.
After being heard at the lower courts, the case came to the Delhi High Court in appeal. The bench of justices J.R. Midha, Rajnish Bhatnagar, and Brijesh Sethi of the high court, in the course of deciding the appeal, took up the issue of compensation that the victim of a serious crime should get. The move followed a report filed by the amicus curiae in the case, G.S. Bajpai, in association with senior advocate, Vikas Pahwa in the court.
The significance of the Karan verdict lies in the court’s use of the victim impact report (VIR) to determine the quantum of compensation to the victim. The Delhi High Court’s version of VIR was not distinctly based on the concept of victim impact statement (VIS), however; there were some significant differences. This verdict ensured the criminal justice system recognises the sufferings of the victims.
To ensure the recognition of the victims, the court mandated the filing of a VIR which would be used to determine the appropriate compensation to the victim of a crime. This compensation would then be paid by the convict for the harm caused to the victim, including emotional trauma and physical injuries, and even for funeral expenses, if needed. The progressive steps taken by the Delhi High Court can be seen as the first instance in the country where the convict would be made liable to provide monetary restitution to the victim.
VIR is prepared on the request by the court for a professional assessment. These reports are prepared by professionals, such as psychologists or psychiatrists, who can provide specialist opinion on the traumatic impact of the crime on the victim. VIR does not include comments about the accused or what sentence should be awarded to the accused. This report is not used until a conviction has taken place.
VIS is a statement to the court by the victim of a case narrating about how the crime has affected him/her. The victim in such a statement explains how the crime has affected him/her physically, emotionally, financially, and socially. Any victim of any crime can make a VIS. Sometimes, others than the primary victim such as the family members or friends of the victim can also be considered as victims of the crime and can make a VIS.
Anyone who is closely related to the victim can also prepare a VIS on behalf of the victim in such cases, where the victim is a minor, or the victim is seriously ill, or the victim has any physical or intellectual disability.
According to Section 357 of the Code of Criminal Procedure (CrPC) 1973, the courts can grant compensation for crimes not punishable with fine and irrespective of the fact, whether a fine is imposed or not. The insertion of Sections 357A and 357B by the amendment of Section 357 in 2008 has broadened the horizons of the victim compensatory regime.
Section 357(3) empowers the court to award compensation to victims who have suffered by the action of the accused. It states: “When a court imposes a sentence, of which fine does not form a part, the court may, when passing judgement, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced”.
Holding that Section 357(3) of CrPC for payment of compensation to victims is a mandatory provision, the Delhi High Court has issued directions to the trial courts to take steps to implement the same. The high court cited various cases for its directives to the lower courts, such as Hari Singh vs. Sukhbir Singh, (1988), in which the Supreme Court deplored the failure of courts to award compensation under Section 357 CrPC and the Ankush Shivaji Gaikwad vs. State of Maharashtra, (2013) case in which the Supreme Court gave directions that the courts shall consider Section 357 of the CrPC in every criminal case and that if a court fails to make an order of compensation, it must furnish reasons for the same.
Directions Given by the Delhi High Court The main directions given in context of this case by the Delhi High Court were as follows:
- After the conviction of the accused, the trial court shall direct the accused to file an affidavit of his assets and income within 10 days.
- After the conviction of the accused, the court shall also direct the State to disclose the expenses incurred on prosecution on affidavit along with the supporting documents within 30 days.
- Upon receipt of the affidavit of the accused, the trial court shall immediately send the copy of the judgement and the affidavit of the accused and the documents filed with the affidavit to the Delhi State Legal Services Authority (DSLSA).
- Upon receipt of the judgement and the affidavit of the accused, the DSLSA shall conduct a summary inquiry to compute the loss suffered by the victim(s) and the paying capacity of the accused and shall submit the VIR containing their recommendations to the court within 30 days.
- The DLSA shall seek the necessary assistance in conducting the inquiry from sub-divisional magistrate (SDM) concerned, station head officer (SHO) concerned and/or prosecution who shall provide the necessary assistance upon being requested.
- The trial court shall thereafter consider the VIR of the DSLSA and hear the parties including the victims of crime, after which it shall award the compensation to the victim(s) and cost of prosecution to the State, if the accused has the capacity to pay the same.
- The court shall direct the accused to deposit the compensation with the DSLSA whereupon the DSLSA shall disburse the amount to the victims according to their scheme.
- If the accused does not have the capacity to pay the compensation or the compensation awarded against the accused is not adequate for rehabilitation of the victim, the court shall invoke Section 357A CrPC to recommend the case to the DSLSA for award of compensation from the Victim Compensation Fund under the Delhi Victims Compensation Scheme, 2018.
- In pending appeals/revisions against the order on sentence in which Section 357 CrPC has not been complied with, the public prosecutor shall file an application seeking a direction from the court for directing the accused to file his affidavit of assets and income and directions to DSLSA to conduct a summary inquiry to ascertain the loss/damage suffered by the victim(s) and the paying capacity of the accused in terms of Sections 357(4) CrPC in accordance with procedure mentioned here in above.
- The DSLSA has been directed to prepare a proposal for additional manpower after examining the number of summary inquiries that are likely to be conducted by the DSLSA every month. This proposal would then be sent to Government of NCT of Delhi within one week. Government of NCT of Delhi shall complete all necessary formalities within three weeks to ensure that the directions of the Delhi HC relating to the summary inquiry by DSLSA in every criminal case are implemented with effect from January 01, 2021.
The three-judge bench stated: “The object of the Section 357(3) CrPC is to provide compensation to the victims who have suffered loss or injury by reason of the act of the accused. Mere punishment of the offender cannot give much solace to the family of the victim, as civil action for damages is a long drawn and cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and, at times perhaps the only effective remedy to console the family of the deceased victim, who may have been the bread earner of the family”.
Section 357 in Lower Courts
Section 357 of the CrPC permitted courts to order accused to pay ‘compensation’ to the victim. However, this was rarely followed.
The apex court of India has time and again stated that Section 357 of the CrPC must be used liberally by the lower courts. The SC in Ankush Shivaji Gaikwad vs. State of Maharashtra (2013), case held the lower courts to apply their judicial mind and record reasons for passing, or not passing orders pertaining to the use of Secton 357 of the CrPC effectively. It said that making the application of Section 357 of the CrPC was mandatory.
Practical Constraints The lower courts face some constraints in applying Section 357 of the CrPC. The language of Section 357 allows them to issue orders for only such compensation which is recoverable in a civil court. They are also restricted by the absence of a uniform head under which compensation could be granted.
There is no uniform mechanism to calculate the paying capacity of the accused or ascertain the impact of the crime on the victim. This prevents courts from granting compensation under Section 357 without risking the charge of arbitrariness. The absence of sentencing guidelines also hampers the application of Section 357 CrPCs.
The Delhi High Court’s directions are aimed at solving some of these problems.
Conclusion Though this verdict by the Delhi High Court on Section 357 of the CrPC generates hope for the victims, there are also concerns around it. The language of Section 357 does not differentiate between restitution and compensation. Restitution includes reparation made by the offender while compensation is paid by the State. Only if the difference is lawfully addressed can this ambiguity be cleared. Besides, VIR and VIS should not remain were instruments for calculating restitution, but should be effectively used in the sentencing process. This requires the courts to come forward and adopt VIR/VIS as best practices in the interest of justice to the victims of crime.