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Calcutta HC Orders Compensation To Trafficking Victim; Says Rehabilitation Not Dependent On Pace Of Investigation Or Trial [Read Order]

Apoorva Mandhani
30 Jun 2018 5:57 AM GMT
Calcutta HC Orders Compensation To Trafficking Victim; Says Rehabilitation Not Dependent On Pace Of Investigation Or Trial [Read Order]
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The Calcutta High Court on Monday directed the State to pay compensation to a child trafficking survivor, rejecting the State’s assertion that she was not entitled to the same because the twin conditions of the accused not having been identified and the trial not having commenced were not satisfied in the case at hand.

The petitioner, originally from West Bengal, had been trafficked to Pune, but was subsequently identified, traced and brought back. Proceedings in this regard have commenced, with two accused having been arrested and two others identified as absconding. In the meantime, the girl had filed an application under the West Bengal Victim Compensation Scheme, 2017, which was formulated in view of Section 357A (victim compensation scheme) of the Code of Criminal Procedure.

Her application was however denied with the State Legal Services Authority claiming that for grant of compensation, two conditions need to be fulfilled: a. accused should not have been traced or identified, and b. the trial should not have commenced. This was in view of Clause 4 of the Scheme, which laid down the eligibility criteria for compensation. The clause began with the words: “Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his/her dependents may make an application to the State or the District Legal Services Authority for award of compensation…”

Justice Raksekhar Mantha, however, disagreed with this claim. On a perusal of the Scheme and as well as Section 357A, the Court noted that the primary object behind the same was the victim’s rehabilitation, and asserted that the narrative “abundantly indicates” that a victim can claim rehabilitation during the pendency of the trial, prior to its commencement or upon conclusion of a trial.

It observed, “The object and purpose of the Scheme of 2017 which itself replaced an earlier scheme of the year 2012 is inter alia that a victim of a serious crime especially a woman needs urgent and immediate attention and both physical and mental rehabilitation. Such rehabilitation from the nature of the scheme and Section 357A is not dependent on the pace on which either the investigation is conducted or the trial is carried on. 

If this be the object and purpose of the Scheme and Section 357A read as a whole, I cannot countenance the findings of the State Legal Services Authority in the impugned order that both the requirements i. e. accused not being traced or identified as well as the factum of trial not having commenced, need be satisfied.”

The Court further noted that if the accused have not been identified, the trial cannot commence anyway. It, therefore, asserted that the legislature could not have imposed as a condition precedent an occurrence leading to the same result twice over. Two similar events, it observed, cannot form two different conditions.

It then asserted that denial of compensation to the survivor would “perpetuate gross inhumanity on the victim”, and ruled, “Compensation is awarded under the scheme as formulated pursuant to Section 357A (supra) as the fundamental rights of the victim under Article 21 have been in fact violated. Denial of compensation to such victim would continue such violation and perpetrate gross inhumanity on the victim in question. This cannot be the object of Section 357A and the 2017 Scheme referred to hereinabove. I, therefore, hold that both the requirements the accused not being identified or traced as also that the trial should not have commenced, need not be satisfied for entitlement of compensation under the 2017 scheme.”

The Court, therefore, directed the State Legal Services Authority to decide the quantum of compensation to be disbursed to her either in one go or in intervals. The girl was also held to be entitled to claim any amount of compensation that she may require at a given point of time, not exceeding the amount of compensation payable to her in entirety. It further clarified that the amount of compensation or a portion of it would be considered for recovery in the form of fine from the accused if the trial ends in conviction.

Read the Order Here

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