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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’.

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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.

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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

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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.