A Comment on 1995 (2) KLT 659 - Poulose v. State of Kerala

 

(Crl. R.P. No. 524 of 1992 Decided on 21st September 1995)

 

(A.K. Radhakrishnan Librarian, Advocate General's Office,  Ernakulam)

 

It is seen from the above judgment of the Hon'ble High Court of Kerala that the petitioner in the Crl. R.P. (Accused) was acquitted by the Hon'ble High Court for the offence u/S.279 I.P.C. for the only reason that the prosecution did not examine any doctor to prove the nature of the injuries sustained by the injured in the accident. This is clear from the last sentence in Para.7 of the judgment which reads thus "As the prosecution did not examine any doctor to prove the nature of injuries sustained by the injured the petitioner is entitled for an acquittal u/S.279 I.P.C. also."

 

It may be recalled that in order to prove an offence u/S.279 I.P.C. the prosecution is not bound to prove the injury sustained by the injured. As a matter of fact the offence u/S.279 IPC is not for causing any injury but for rash or negligent driving on a public way. This is evident from Section 279 I.P.C. which reads thus "Rash driving or riding on a public way:- whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both". On a reading of the section it cannot be stated that hurt or injury is to be caused in order to attract the offence. Nowhere In the section it is stated so. To constitute an offence u/S.279 IPC it must be established that the accused was driving a vehicle on a public way in a rash or negligent manner to endanger human life or to be likely to cause hurt or injury to any other person. So, mere rash or negligent driving or riding likely to cause hurt or injury is sufficient. Bare negligence involving risk of injury need be established. In other words, bare negligence involving risk of injury is punishable criminally u/S.279 IPC eventhough nobody is actually hurt by it. What is made punishable u/S.279 IPC is the manner of riding or driving of any vehicle on public way. In order to attract the offence u/S.279 IPC it is not at all necessary that the rash or negligent act should result in injury to life and property. It is also not even necessary that any person was on the road at the time. The court may take into consideration the probability of person using it being placed in danger. If that so, there cannot be any acquittal for the offence u/S 279 I.P.C merely for the failure of the prosecution to prove the nature of the injuries sustained to the injured. The question of causing hurt or injury does not arise at all. In order to prove an offence the prosecution need only prove that the accused drove the vehicle on a public way in a rash or negligent manner as to endanger human life or to likely to cause hurt to any other person. It may be recalled that the Hon'ble High Court has not stated in the judgment that the prosecution failed to prove that. On the other hand it was only for non examination of the doctor to prove the nature of the injuries sustained by the injured the accused was acquitted.

 

In this context it is relevant to note that for causing hurt to any person by doing an act so rashly or negligently as to endanger human life one is punishable u/S.337 IPC. There is also provision for punishing the offender for causing grievous hurt in the manner stated above. The same is punishable u/S.338 IPC. In these circumstances it is respectfully submitted that one is not entitled for acquittal for an offence u/S.279 I.P.C. merely for failure of the prosecution to examine any doctor to prove the nature of the injuries sustained by the injured.

Can the Supreme Court Issue a Writ of Mandamus

to the Legislature or to its Delegate

 

(K. Balakrishnan, Advocate, Kochi)

 

It is settled law that the Courts cannot issue a writ of mandamus against the Legislature to enact any legislation or to amend any legislation in any particular manner. The same principle will apply in issuing directions to the Government, while it is acting as a delegate of the Legislature. This submission is supported by the decision of the Hon'ble Supreme Court reported in AIR 1971 SC 2399 (Narindar v. Lt. Governor, U. T. of Himachal Pradesh). The relevant portion of the judgment reads as follows:—

 

"The power to impose a tax is undoubtedly a legislative power. That power can be exercised by the legislature directly or subject to certain conditions, the legislature may delegate that power to some other authority. But the exercise of that power, whether by the legislature or by its delegate is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact"             (para.7)

 

No one can have any dispute that the service conditions of subordinate judicial officers should be improved and they must be free from wants so that they can be truely independent. No man can be independent, unless he is free. Therefore, the directions issued by the Supreme Court to improve the service conditions of judicial officers in All India Judges Association's Cases ((1992) 1 SCC 119 and (1993) 4 SCC 288) are the need of the hour. But can the Supreme Court go to the extent of saying that the Rules governing service conditions including that of age of retirement should be suitably amended to give effect to those directions. Rejecting the arguments on behalf of the State Governments, the Supreme Court has reiterated that it can issue directions to the Governments and the Legislatures to amend the Rules relating to service conditions of judicial officers.

 

It is most respectfully submitted that the said proposition laid down by the Supreme Court does not appear to be correct. The legislature does not owe to any one any duty to frame any law in any particular manner and no one can claim any right to the performance of such a duty by the Legislature. Therefore, the pre-requisites for the issue of a mandamus are absent. Further, courts do not issue futile writs. In the light of the privileges contained in Arts.105(2) and 194(2) of the Constitution of India, the members of the legislature are not answerable to any court for voting in any particular manner inside the House. So, a mandamus issued against a Legislature can in no way be enforced as no contempt proceedings can be initiated against a member of the Legislature for voting or for not voting in any particular manner inside the House.

 

The same principle will apply to subordinate legislation also. Suppose the Supreme Court directs our State Government to amend Rule 60 of Part 1 KSR by making a provision that the age of retirement of Judicial Officers shall be 60 and the Government framed a Rule to that effect and placed it before the Legislative assembly as mandated under S.2(2) of the Kerala Public Service Act, 1968. If the Legislature passes a resolution disapproving the said amendment, the court will be helpless to enforce its writ against the members of the House who disapproved the proposed amendment.

 

The Apex Court may make a declaration that the Rule regarding the existing age of retirement of Judicial Officers is unconstitutional on the ground that it is treating unequals equally and thereby violating Arts.14 & 16 oftheConstitutionofIndia.lt may also make a declaration that, since the Constitution has respectively provided the age of 65 and 62 for retirement, for the Supreme Court Judges and High Court Judges, a retirement age comparable to them alone will satisfy the requirement of Arts.14& 16. It may even declare that the prescription of age limit below 60 will be clearly unreasonable. But the direct issuance of a mandamus against the Legislature or its delegate will amount to transgressing the constitutional limits demarcating the respective fields for the different organs of the State.

Advocates and Doctors -- Profession and Business

 

(S. Ananthasubrahmanian, Advocate, Ernakulam)

 

In S Mohan Lal v. R. Kondiah (1979 (3) SCR 12 = AIR 1979 SC 1132) the Supreme Court held that the expression "business" in S.10(3)(a)(iii) of the Andra Pradesh Buildings (Lease, Rent and Eviction) Control Act is used in a wide sense so as to include the practice of profession of an Advocate.

 

The Supreme Court has in Civil Appeal No. 1066 of 1987 - Dr. Jess Raphael v. Mrs. K.L. Regina Joseph, (Reported in 1994(1) KLT 852 (SC)) adopting the reasoning and dictum in 5. Mohan Lal's case said: "If this is the law with reference to an Advocate, the case on hand is a fortiorari" and set aside the judgment of the learned District Judge and the High Court allowing the Doctor-tenant's appeal.

 

Civil Appeal No.1066 of 1987 originated from R.C.P.115 of 1977 of the Rent Control (Principal Munsiff s) Court, Ernakulam and is with reference to the second proviso to S. 11(3) of the Kerala Buildings (Lease and Rent Control) Act. It was decided on 18-1-1994.

 

The decision of the High Court of Kerala to the contrary in Hassan v. Mohammed - 1994 (1) KLT 502 rendered on 25-1-1994, one week later and reported in the issue of KLT dated 21-3-1994 would have been otherwise if the decision of the Supreme Court was noticed.

 

Here is the need for the computer.

Judicial System

 

(M. Stanley Fernandez, B.Com., D.S.S., B.L., Advocate, Kochi)

 

The collapse of the Judicial System under the load of pending cases is a fear expressed by many in your country today. However the present Supreme Court: Chief Justice Mr. M.N. Venkatachaliah has expressed the view that the fear of the collapse of the Judicial System is totally baseless. And the Supreme Court has successfully brought down the number of pending cases by thirty percent last year.

 

The official view is that with certain improvements, the Judicial System could work well. According to Chief Justice M.N. Venkitachaliah the pendency of cases is only a management problem and steps are being taken to tackle this problem in Supreme Court in a professional manner with the assistance of the Indian Institute of Management. And computers and automation has been already introduced in the administration now. Further the court automation divisions in the various High Courts of our country can benefit subordinate courts too. These steps would certainly help to speed up the wheels of justice in our Country.

 

Out of the eight hundred and fourty cases decided by the Supreme Court in the year 1993, one hundred and fourty related to service matters, which is equivalent to 16% (Sixteen percent). This burden is the creation of the Central and State Governments. Acting with fairness the Central and State Administration could have easily redressed the grievanes of their employees out of court. Incidentally one of the cases decided by the apex court related to class IV employees of the Supreme Court seeking parity with pay-scales obtaining in Delhi High Court. Though the Supreme Court accepted the prayers of the employees/petitioners as early as on March 16, 1993, the decision of the Central Government (in this regard) is still awaited.

 

At least four per cent of cases in the various High Courts of our country and the Supreme Court is about official misfeasance by public authorities and statutory bodies. Improper application of taxation laws is another area which generates much litigation, followed by land acquisition cases. One thing is certain that at least fourty per cent of the Court's time in our country is consumed in correcting the mistakes of the Government.

 

Preventive detention is another area where the Government alone can reduce the burden of the Supreme Court, the State being the major litigant in our country can certainly help the courts in speedy disposal of cases. The services of the large contingent of workless lawyers sitting idle in the bar library and the junior lawyers in the Bar Association Halls can be well-utilised by asking the senior lawyers to part with some of their briefs in favour of these less fortunate class of lawyers. And the senior advocates can also be asked to help to contain long winded litigation.

 

Another important reason for the long pendency of cases is the fact that both the Central and State Governments often fail to file statements and counter affidavits on time in courts and many are the occasions when government advocates fail to appear (when their cases are taken up) in the various courts of our country. If the senior lawyers, Central and State Governments and the Government advocates make a joint effort this crucial problem of 'justice delayed is justice denied' can easily be solved.

Compensation to the Victims of Crime :

Indian Law and U.N. Resolutions

 

(By Justice B.N. Patnaik, Judge, High Court of Kerala)

 

Victimology, as a separate discipline deals with the study of the problems of victims of crimes and their right to claim compensation which, includes rehabilitation and restitution, from the offender or the authorities of the State. The traditional concept of criminal justice administration which connotes, legislation of penal law, enforcement of the law and detection of crime, trial of offenders and execution of sentence passed by a court of law does not comprehend the duty of the State to alleviate the suffering of the innocent victims and/or their families for the loss of life, liberty, property and reputation and for bodily or mental injury in consequence of a crime.

 

In a large number of cases, untold misery to the victims and their family members ensures in the event of murder of a sole earning member of the family and destruction of dwelling house and property by arson and loot, permanent disability resulting from injury, social stigma and personal trauma on account of sexual assault, loss of property due to the offences of cheating, robbery, decoity and theft. In many cases, the victims are left in the lurch.

 

The expenditure incurred for investigation and trial of a sessions case is approximately Rs.16,000/- and for maintaining a prisoner convicted of an offence is about Rs.3,550/- per annum. It is calculated in the following manner:

 

On an average, the duration of pendency of a sessions case, from the initial stage of investigation till the culmination of trial, is one year. But in effect, the total time devoted to the investigation and trial is 360 hours (15 days). Salary and allowance of investigating staff, consisting of two gazetted officers and three non gazetted officials and the expert, salary and allowances of the Magistrate, Judge, two Clerks, one Stenographer, two peons and one Process Server come to vRs.10,800/-, at the rate of Rs.30 per hour. Witness expenses amount to Rs.500/-. Fees of the Prosecutor and his staff come to Rs.3,600/-. Miscellaneous expenses like transport of accused/convict, stationery and establishment are Rs.1,000/- (Total Rs.15,900/- rounded toRs.16,000/-).

 

Expenses of diet, clothing, other amenities like medical aid, personal hygiene and occasional entertainment of a prisoner in a year amount to Rs.3,650/-, at the rate of Rs.10/- per day. Maintenance cost of Jail building and its premises, including water supply, lighting charges, security and sanitation; pay and allowance of Jail and Welfare Authorities, stationery and office expenses, all taken together per annum for one prisoner can be assessed at Rs.500/-. The income derived from the labour of a prisoner is Rs.600/- per annum. (Total - Rs.4150/- less Rs.600/-   = Rs.3,550/-).

 

It is seen that about 5% of the State revenue is spent for criminal justice administration.

 

It is imperative for the State to incur expenditure to manage the various departments of law enforcing agencies in order to maintain peace and tranquility in the society, and to prevent the unlawful activities of anti-social elements. At the same time, the duty of a welfare State to devise ways and means to bring solace to the hapless victim by way of payment of compensation on humanitarian grounds is no less important. It will give some consolation to the distressed victim.

 

The necessity of paying compensation to the victims of crime has also engaged the attention of the United Nations. The 7th United Nations Congress on Prevention of Crime and Treatment of Offenders, came out with a declarataion of basic principles of Justice of Victims of Crime and Abuse of Power, which was later adopted by the U.N. General Assembly. In the declaration, the U.N. defined the "Victims of Crime" as follows:

 

"1. "Victims" means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws prescribing criminal abuse of power.

 

2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term "victim" also includes where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

 

3. The provisions contained herein shall be applicable to all, without distinction of any kind, such as race, colour, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability."

 

The U.N. Social Council's draft "Guidelines for Measures on behalf of Victims of Crime and Abuses of Power" laid down the types of harm, injury, loss or damage caused by wrongful conduct. It is as follows:

 

"The loss of life or of support, impairment of health, including physical or psychological injury, pain and suffering both physical and mental, loss of liberty, loss of income or livelihood, loss of property or damage to it which is not subject to restitution and deprivation of the use of property. Due account must also be taken of the special damages or expenses and costs reasonably incurred by the victim or where appropriate, by the victim’s family, dependants or heirs, which resulted from victimisation, including medical costs, transportation costs, funeral and burial costs, legal costs, treatment and rehabilitation costs, and similar and related costs and expenses".

 

The victims in general may be broadly classified into twelve categories. They are:-

 

1. Victims of war.

 

2. Victims of accidents that occur

 

(a) on Road, (b) on Railways (c) on the Aircraft, (c.) on Sea and (e) in the workplace.

 

3. Victims of abuse of power by lawful authority :-

(a) Custodial death,

(b) Death due to firing,

(c) Groundless arrest and detention;

(d) Unnecessary harassment

 

4. Victims of rape.

 

5. Victims of criminal conspiracy, offences of giving or fabricating false evidence, fabricating false documents or forgery of records, valuable documents, certificates or causing disappearance of evidence by way of destruction or concealment of the documents, fraudulent acts with the intention of causing bodily or mental harm to a person, murder, miscarriage, hurt, wrongful restraint and wrongful confinement, assault, use of criminal force, kidnapping, abduction, forced labour, unnatural offence, theft, extortion, robbery and dacoity, cheating, mischief, arson, criminal trespass, adultery, bigamy, fraudulent marriage, dowry torture and death, defamation, criminal intimidation, insult and annoyance.

 

6. Victims of offences relating to manufacture and sale of adulterated, substandard and prohibited drugs, liquor and food.

 

7. Victims of offences of smuggling, blackmarketing, unfair trade practice and evasion of tax.

 

8. Victims of offences committed by public servants, such as negligence and inefficiency in discharging their duties, corruption, bribery and misappropriation of public funds.

 

9. Victims of environmental pollution and wanton destruction of flora and fauna, and public nuisance.

 

10. Victims of offences committed in the election.

 

11. Victims who are also offenders as perpetrators of crimes such as drunkenness, consumption of narcotic drugs, gambling, attempt to commit suicide and prostitution, which are otherwise known as victimless crimes.

 

12. Victims who create a compelling situation in which the offender reacts violently by committing a criminal act. Sometimes the victim provokes the offender to commit the crime. Victims of affray, free fight and rioting may also be included in this category.

 

The necessity of compensating the victims of war was declared in the draft guidelines for Measures on behalf of Victims of Crime and Abuse of Power by the United Nations Economic and Social Council. The treaties following both the First and Second World Wars obliged the defeated powers to pay full compensation with respect to war crimes and crimes against humanity committed by their armed forces on the territories of the Allied and Associated powers.

 

The Personal Injuries (Emergency Provisions) Act, 1962, and the Personal Injuries (Compensation Insurance) Act, 1963 envisage that the Central Government has the power to make schemes for the grant of relief in respect of personal injuries sustained during the periods of emergency that were declared on 26.10.1962 and 3.12.1971. Payment by way of allowance, shall be payable only where the injury or disease causes serious and prolonged or permanent disablement of death as a result of war.

 

Victims of accidents are those who sustain bodily injuries causing either permanent or temporary disability and the legal representatives of deceased who dies, as a result of it. It may arise out of the use of a motor vehicle, Railway train, Aircraft, a Ship or while operating a machine in a factory.

 

Sections 140, 161 and 166 of the Motor Vehicles Act 1988 entitle a victim of motor accident to prefer a claim for compensation before a duly constituted Motor Accidents Claims Tribunal. Provision has also been made empowering the Government to establish and administer a solatium fund out of which compensation can be paid in cases of death or grievous injury resulting in hit and run cases where the persons guilty of causing the accident remain untraced.

 

S.124 and the rules framed under S.129 of the Indian Railways Act 1989 provide for payment of compensation to the Railway accident victims.

 

Under S.5 of the Carriage By Air Act, 1972, persons who are carried by aircraft are entitled to claim compensation in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took pi ace on board aircraft or in the course of any of the operations of embarking or disembarking. Under Regulation No.5 of the Indian Airlines Non-International Carriage (Passenger and Baggage) Regulations, 1980, the Indian Airlines Corporation is liable for damage sustained in such event. Under S.346 of the Merchant Shipping Act, 1958 the owners of the ship shall be liable to pay compensation whenever loss of life or personal injuries are suffered by any person on board a ship owing to the fault of that ship and of any other ship. Under Sections 3 and 10A of the Workmen's Compensation Act, 1923, a workman is entitled to claim compensation in the event of death or bodily injury caused to a workman in the course of his employment or while discharging his duties as a workman.

 

The Government of India enacted Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 to settle the claim of compensation for those who suffered due to leakage of lethal gas from the Union Carbide Corporation at Bhopal. On the night of December 2, 1984 there was massive escape of lethal gas from the MIC storage tank at Bhopal plant of the Union Carbide (I) Ltd. (UCIL) as a result of which 4000 human lives were lost and tens of thousands of citizens of Bhopal were physically affected. Action was brought up by the Union of India as parens patriae before the District Court, Bhopal pursuant to the statutory enablement in that behalf claiming 3.3 billion dollars as compensation against the company. When an interlocutory matter pertaining to the interim compensation came up for hearing there was a court assisting settlement between the Union of India and the Union Carbide Corporation (UCC - owning 50.99 per cent shareholdings of UCIL). Under this settlement a sum of US Dollars 470 million was agreed to be paid by the UCC to the Union of India in full settlement of all the claims of all victims of the gas leak against the UCC.

 

In a number of cases, the Supreme Court has laid down sound guidelines with regard to assessment of just compensation to be paid to the victims of accidents. Though in some hard cases, either no compensation was paid or inadequate compensation was paid, yet it is generally found that the courts and tribunals have been liberally granting compensation to such victims in accordance with the observations made by the Supreme Court.

 

Thus, the victims of war and accidents have the right to claim compensation under the statute. But there is no such right of other victims, though compensation has been awarded in a few cases, at the discretion of the court.

 

In Kasturi Lai v. State of U.P. (AIR 1965 SC 1039), it was held that the State is immune from liability to pay damage to an injured, if a tortious acts committed by public servants in course of employment and in exercise of statutory functions delegated to them by the Government. It is observed that there is a material distinction between acts committed by the servants employed by the State where such acts are referable to the exercise of sovereign powers delegated to public servants, and acts committed by public servants which are not refer able to the delegation of any sovereign powers. If the tortious act is committed in discharge of statutory functions based on the delegation of sovereign powers of the State, then the action for damages will not lie.

 

But, later the Supreme Court in Nilabati Behera v. State of Orissa (AIR 1993 SC 1960) held that the concept of sovereign immunity is not applicable to the cases of violation of fundamental rights. It is observed as follows:

 

"A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the constitution is an acknowledged remedy for enforcement and protection of such rights, and such claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is distinct from, and in addition to, the remedy in private law for damages for the tort resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Arts.32 and 226 of the Constitution.

 

In Sebastian M. Hongrayv. Union of India.(AIR 1984 SC 1026), two persons were taken to the Phungrei camp by the jawans of 21st Sikh Regiment on March 10,1982. In a writ of habeas corpus, the Court directed the concerned authorities to produce those two persons, who were reported to be missing since then. The Government finally failed to do so. This was considered to be a case of death of persons while in custody of the lawful authority. The Supreme Court, in the circumstances, keeping in view the torture, the agony and the mental oppression through which the wives of the persons directed to be produced had to pass, instead of imposing a fine, directed that as a measure of exemplary costs a° is permissible in such cases, the respondents shall pay Rs.1 lakh to each of the aforementioned two women.

 

In Nilabati's case, a person was taken to custody by a police officer on 1.12.1987 at 8 A.M. for interrogation in connection with a crime and he was found dead the next day on the railway track near the Police Outpost without being released from custody. His death was unnatural, caused by multiple injuries sustained by him. In the absence of a plausible explanation by the police authorities and the State, consistent with their innocence, it was held that the obvious inference is that the fatal injuries were inflicted to him in police custody resulting in his death, for which the respondents are responsible and liable. The court accordingly, directed the State to pay a sum of Rs.1,50,000/- to the mother of the deceased and a further sum of Rs.10,000/- as costs within three months, by holding that it is a clear case for award of compensation to the petitioner for the custodial death of her son.

 

The Supreme Court, in State of M.P. v. Shyamsunder Trivedi (AIR 1995 SCC (Crl) 715), found that the victim died in police custody as a result of extensive beating given to him. The Sub Inspector of Police was sentenced to pay a fine of Rs.50,000/ - and other accused sentenced to pay Rs.20,000/- each and the entire amount of fine on realisation was directed to be paid to the heirs of the deceased. It was observed that torture in custody flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity.

 

On 19th April, 1986, the Police personnel surrounded a gathering of 600 to 700 poor peasants and landless people mostly belonging to the backward classes, while holding a peaceful meeting within the compound of Gandhi Library in Arwal. Without any previous warning or any provocation on the part of the people who had so collected, the police opened fire as a result of which several people were injured and at last 21 persons including children died. The Court on a consideration of the facts and circumstances of the case, directed the State Government to pay a sum of Rs.20,000/- to the dependants of the deceased and Rs.5,000/- to every injured person. (See: Peoples' Union for Democratic Rights v. State of Bihar - AIR 1987 SC 355).

 

In Rudul Sah v. State of Bihar ((1983) 4 SCC 141), the Supreme Court found that the petitioner's prolonged detention in prison after his acquittal was wholly unjustified and illegal. It is said that Art.21 will be denuded of its significant content if the power of the Supreme Court were limited to passing orders of release from illegal detention. The only effective method open to the judiciary to prevent violation of that right and secure due compliance with the mandate of Art.21 is to mulct its violators in the payment of monetary compensation. The right to compensation is thus, some palliative for the unlawful acts of instrumentalities of the State which act in the name of public interest and which present for their protection the power of the State as a shield. Therefore, the State must repair the damage done by the officers to the petitioner's rights. The State was therefore, directed to pay a sum of Rs.30,000/- to the petitioner in addition to the sum of Rs.5,000/- already paid by it.

 

In Bhim Singh v. State of J & K (AIR 1986 SC 494), a member of the Legislative Assembly was arrested while en route to seat of Assembly and in consequence, the member was deprived of his constitutional rights to attend the Assembly Session and responsibility for arrest lay with higher echelons of the Government. The person was not produced before the Magistrate within the requisite period. Arrest was made with mischievous and malicious intent. There was, therefore, gross violation of his rights under Arts.21 and 22(2) of the constitution. It was held that it is a fit case for compensating the victim by awarding a compensation of Rs.50,000/-.

 

In Saheli v. Commissioner of Police, Delhi (AIR 1990 SC 513), a boy about 9 years old was beaten by the police in course of some investigation into a crime. He died as a result of the assault by a police officer. It was held that the State is liable to pay compensation, if death of a person occurs due to police atrocities. The State Government was directed to pay Rs.75,000/- as compensation to the mother of the victim.

 

In Inder Singh v. State of Punjab (1995 SCC (Crl.) 586), seven persons were abducted and eliminated by police authorities by misusing official machinery to wreak private vengeance. State as a token of its failure to enforce law and order to protect its citizens, was directed to pay Rs.1.50 lakhs to the legal representatives of each of the seven victims.

 

In Central Co-operative Consumers' Store Ltd. v. Labour Court ((1993) 3 SCC 214), it was found that apart from insult, humiliation and harassment thrust on a sales girl of a Co-operative Store, the manager removed her from service without giving a notice to her. Her removal from service was held to be illegal by all the courts. She had to light the litigation for a period of nearly 20 years. As a result, the Co-operative Society had to pay about Rs.three Lakhs to her for the thoughtless acts of its officers. The Supreme Court while asking the society to pay the amount directed to replenish itself and recover the amount from the personal salary of the officers of the Society.

 

In Radha Bai v. Union Territory of Pondicherry ((1995) 4 SCC 141), it was found that a woman officer of the Pondicherry Administration was harassed by the authorities. She was fighting for her cause for 17 years. The Supreme Court ordered the Government to pay her Rs.3 lakhs as compensation for loss of reputation and honour and the agony suffered in the long battle. The amount of compensation was directed to be paid jointly by the Union Territory of Pondicherry and the then Home Minister of the State.

 

In Lucknow Development Authority v. M.K. Gupta (AIR 1994 SC 787), it was found that an allottee of a flat by the housing authority was entitled to get compensation for deficient service under the Consumer Protection Act, 1986 (as it stood prior to the amendment). Apart from awarding compensation, the Supreme Court held that the compensation should be recovered from the personnel of the concerned department or authority of the State.

 

In Delhi Domestic Working Women's Forum v. Union of India (1995 SCC (Crl) 7), some jawans raped six women while travelling in the train. Appropriate action was not taken against the culprits. In that context, the Supreme Court observed as follows:

 

"It is necessary to indicate the broad parameters in assisting the victims of rape.

 

(1) The complainants of sexual assault cases should be provided with legal representation. It is important to have someone who is well-acquainted with die criminal justice system. The role of the victim's advocate would not only be to explain to the victim the nature of the proceedings, to prepare her for the case and to assist her in the police station and in court but to provide her with guidance as to how she might obtain help of a different nature from other agencies, for example, mind counselling or medical assistance. It is important to secure continuity of assistance by ensuring that the same person who looked after the complainant's interests in the police station represent her till the end of the case.

 

(2) Legal assistance will have to be provided at the police station since the victim of sexual assault might very well be in a distressed state upon arrival at the police station, the guidance and support of a lawyer at this stage and whilst she was being questioned would be of great assistance to her.

 

(3) The police should be under a duty to inform the victim of her right to representation before any questions were asked of her and that the police report should state that the victim was so informed.

 

(4) A list of advocates willing to act in these cases should be kept at the police station for victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.

 

(5) The Advocate shall be appointed by the Court, upon application by the police at the earliest convenient moment, but in order to ensure that victims were questioned without undue delay, advocates would be authorised to act at the police station before leave of the court was sought or obtained,

 

(6) In all rape trials anonymity of the victim must be maintained, as far as necessary.

 

(7) It is necessary, having regard to the Directive Principles contained under Art.38(1) of the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims frequently incur substantial financial loss. Some, for example, are too traumatised to continue in employment.

 

(8) Compensation for victims shall be awarded by the Court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result of the rape."

 

In Gudalure M.J. Cherian v. Union of India (1995 SCC (Crl) 925), some miscreants broke open the window of the house where (he Sisters of a Missionary Society were staying. The miscreants committed rape on two sisters and others were assaulted. The Supreme Court directed the State to pay a sum of Rs.2,50,000/- as compensation to each of the two sisters on whom rape was committed by the assailants and a sum of Rs.1 lakhs each to other who were assaulted.

 

Compensation to the victims of abuse of power by lawful authorities and victims of rape was awarded in exercise of the jurisdiction under Art.32 of the Constitution of India for violation of the fundamental rights. Though damages could be claimed in a civil suit, yet it was found that there was violation of Fundamental Rights of the victims and as such they are entitled to the compensation. A civil suit for compensation entails heavy expenses besides the delay in getting the relief.

 

Sections 250,357,358, 359 of the Code of Criminal Procedure, 1973 and S.5 of the Probation of Offenders Act 1958 are some of the provisions relating to the power of the court to award compensation to the victims. S.250 empowers the court to award compensation for accusation without reasonable cause. S.357 empowers the court to direct the whole or any part of the line amount or if no sentence of fine is imposed, then a specified amount as compensation to the victims on conviction of the accused person. S.358 lays down that maximum amount of Rs.100 as compensation may be ordered to be paid by the Magistrate to persons who have been groundlessly arrested. Under S.359, the Court can order the accused to pay costs of the proceeding in a non-cognizable case, if the accused is convicted. Under S.456, the court has the power to restore possession of immovable property on conviction of the accused for criminal trespass. Under S.5 of the Probation of Offenders Act, the Court has the power to direct the offenders who have been released under the Act to pay compensation to the victims.

 

Under Ss.357 and 359 of the Code of Criminal Procedure and under S.5 of the Probation of Offenders Act, the victim is entitled to get compensation only in the event of the conviction of the offender. That apart, it is entirely at the discretion of the Court that a victim is given compensation. These provisions of the Code of Criminal Procedure and the Probation of Offenders Act are practically circumscribed by the conditions that the accused person must have been convicted, and the fine amount, if imposed is recoverable or the accused commits a probationable offence. These provisions do not create any right to claim compensation in favour of the victim. Moreover, if the convict is incapable of paying the fine or the compensation as ordered by the Court on grounds of poverty, the victim is deprived of getting it from any other source. Award of one hundred rupees under S.358 of the Code of Criminal Procedure can be hardly said to be any compensation.

 

In Hari Kishan & State of Haryana v. Sukhbir Singh (AIR 1988 SC 2127), the Supreme Court while considering the significance of S.357 of the Code of Criminal Procedure, said:

 

".....It is an important provision, but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. 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 re-assure 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 reconciling the victim with the offender.... We therefore, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way."

 

There are hundreds of cases in which the accused persons are convicted although offences are found to have been committed against some innocent persons. In such cases, the victims of crime are left without any remedy.

 

The prosecution must prove the complicity of the accused in the crime beyond any reasonable doubt. If the court finds that no offence is made out, according to law, there is no question of having a victim. Although the court finds that an offence has been committed against the aggrieved complainant, yet it may acquit or discharge the accused on one or more of these grounds, namely, (a) even though the case is true, yet no clue was found to implicate the accused in the crime during the investigation; (b) no sufficient legal evidence was available against the accused at the trial for holding him guilty; (c) the alleged criminal conduct of the accused could get protected under any of the exceptions provided in the Indian Penal Code, such as right of private defence of property and person, incapacity, insanity of the accused or lack of mens rea (guilty intention) etc., (d) in some cases, prior sanction for prosecution of certain authorities is required to prosecute an offender and for want of such sanction, the accused is entitled to acquittal, and (e) there may be a case of mistake of fact or mistaken identity of the accused person as the culprit. In such circumstances, it will be unjust to deny compensation to the victims who deserve to get the same, merely on the ground of acquittal of the accused even though a crime has been committed.

 

So far as the victims falling under categories 6 to 12 are concerned, they are the general public. So far as the persons who suffered on account of their own illegal conduct, such as victimless crimes are concerned, steps are usually taken by the State to reform and rehabilitate them. If compensation is paid to the victims of this category, it would amount to rewarding the offender.

 

It is found that some of the victims are in a real sense instigators. Their attitudes, wishes and personalities seem to provoke action by the doer. The actual affinity between the doer and the victim was found to range from complete indifference to conscious impulsion. There are some discernible attitudes which determine the affinity of victim and the doer. They are the attitudes of 'submitting, conniving, passively submitting, cooperative, contributory, provocative, instigative ad soliciting'. A person, who is equally responsible for the commission of a crime, is also a perpetrator of the crime. Offences like affray, free fight and rioting between some groups of people which result in the disturbance of public peace and tranquility are indeed the crimes against the entire community of a locality. Almost all the offenders sustain injuries in such cases. If such acts cause tension and disharmony in the lives of the people of the society, compensation to such injured persons is inappropriate.

 

The U.N.O. in its declaration of 'Basic Principles of Justice for Victims of Crime and Abu se of Power' laid down the method of tackling the problems of victims of crime and victims of abuse of power. They are as follows:

 

"Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to promote redress, as provided for by national legislation, for the harm that they have suffered.

 

Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.

 

The responsiveness of judicial and administrative process to the needs of victims should be facilitated by:

 

(a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;

 

(b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;

 

(c) Providing proper assistance to victims throughout the legal process;

 

(d) Taking measures to minimize inconvenience to victims, protect their privacy when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;

 

(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.

 

Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redress for victims.

 

Offenders or third parties responsible for their behaviour should where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimisation, provision of service and the restoration of rights.

 

Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions.

 

In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of the community.

 

Where public officials or other agents acting in an official or quasi-official capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimising act or omission occurred is no longer in existence, the State or Government successor in title should provide restitution to the victims.

 

When compensation is not fully available from the offender or other sources States should endeavour to provide financial compensation to:

 

(a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes.

 

(b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimisation.

 

The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.

 

Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means.

 

Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.

 

Police, justice, health, social service and other personnel concerned should receive training to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid.

 

In providing services and assistance to victims, attention should be given to those who have special needs because of the nature of the harm inflicted or because of factors such as those mentioned in paragraph 3 above.

 

States should consider incorporating into the national law norms prescribing abuses of power and providing remedies to victims of such abuses. In particular, such remedies should include restitution and/or compensation, and necessary material, medical, psychological and social assistance and support.

 

States should consider negotiating multilateral international treaties relating to victims, as defined in paragraph 18.

 

States should periodically review existing legislation and practices to ensure their responsiveness to changing circumstances, should enact and enforce, if necessary, legislation prescribing acts that constitute serious abuses of political or economic power, as well as promoting policies and mechanisms for the prevention of such acts, and should develop and make readily available appropriate rights and remedies for victims of such acts."

 

One of the stumbling blocks in the implementation of such programmes is the financial constraint of the State. It can be modestly estimated that at least in 50% of pending criminal cases victims of crime may be eligible to get compensation. The amount of compensation to the victims of a case could range from Rs.100 to Rs.1 lakh. The approximate number of criminal cases pending in different courts in India is about five million. Out of them, in at least 2 1/2 million cases victims may be eligible to claim compensation. If compensation on an average is calculated at the rate of Rs.5,000/- per case, the mini mum requirement to meet the demand would be Rs.1,250 crores at present. In Kerala alone, for example, the total number of pending criminal cases is 2,24,428 as on 31.7.1996. Out of it, in 1,12,124 cases compensation at the rate of Rs.5,000/- may have to be paid and the total amount of compensation would come to Rs.56,10,70,000/-. If the State is called upon to pay the entire compensation, then there will be heavy burden on the exchequer. It may not become possible to recover the compensation from the offender if he is untraceable, acquitted or impecunious.

 

The other option is to create a public fund for the purpose. An appeal may be made to the people and philanthropic societies to generously extend their co-operation in contributing money to organise such a fund, if the State fails to provide it.

 

However, to start with, payment of compensation may be confined to the victims of crimes of violence. One who causes personal injury on another or death of another by committing unlawful or reckless acts may be said to have committed a crime of violence. They may be grievous hurt (except those, including death, arising out of accidents and war) murder, rape, dowry related torture and dowry death. Amount of the loss of movables or cash cannot be precisely determined objectively. Very often, the victims make exaggerated statements on this score. Hence such claims may be excluded from the purview of any scheme relating to the grant of compensation to the victims.

 

Forums, like the Consumer Redressal Forums, may be constituted by an Act of Parliament to adjudicate the claims and award compensation in deserving cases.