'Despite Clear Mandate Of Section 357-A CrPC, Non- Implementation Of It By Criminal Courts Is Disturbing', Chhattisgarh HC Orders 7 Lakhs Compensation For Rape Victim [Read Order]

The bench of Justice Sanjay K. Agrawal also observed that,

"Despite clear mandate contained in Section 357-A of the Code and mandate of their Lordships of the Supreme Court in this regard in the judgments cited, the criminal courts are not even considering the question of compensation to the victims, particularly the rape victims which is not only disturbing but warranting remedial steps to be taken forthwith."

The background of the case

The petitioner (rape victim) made a report against the accused (juvenile) for the offences punishable under Sections 363, 366 & 376 of the IPC and Sections 3 & 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act') and ultimately, he was charged for those offences and also charge-sheeted.

He was tried by the Juvenile Justice Board constituted under the Act of 2015 and ultimately, by judgment dated 2-3-2020, he was found guilty and convicted for offences under Sections 363, 366 & 376 of the IPC and Sections 3 & 4 of the POCSO Act and also he was sentenced to a fine of ₹ 1,000/-, but no order was passed directing payment of compensation to the petitioner (victim) as provided under Section 357 of the Code.

Notably, the rape victim (minor) at whose instance the accused (juvenile) was found guilty was not paid a single penny towards compensation, either interim or final.

Compensation for the Victim

It may be noted that Section 357-A was inserted in the Code, by Amending Act 5 of 2009 and the amendment came into the force with effect from 31-12-2009. This particular section recognises compensation as one of the methods of protection of victims.

The object and purpose of this provision is to enable the Court to direct the State to pay compensation to the victim where the compensation under Section 357 of the Code was not adequate or where the cases ended in acquittal or discharge and the victim was required to be rehabilitated.

In the matter of Suresh and another v. State of Haryana (2015) 2 SCC 227, the Supreme Court clearly noticed that despite there being a clear provision in Section 357-A of the Code, the award of compensation had not become a rule and interim compensation, though it is very important, is not being granted by the courts.

Now, if we talk about POCSO Act and allied Rules, a conjoint reading of sub-section (8) of Section 33 of the POCSO Act read with Rule 9 of the POCSO Rules, 2020 would show that the Special Judge is empowered to direct for payment of compensation to the victim/child for loss or pain which he/she has suffered.

The quantum of compensation has to be calculated taking into consideration the loss or injury suffered by the victim and other related factors laid down in Rule 7(3) of the POCSO Rules, 2012 substituted by the POCSO Rules, 2020 and shall not be restricted to the minimum compensation amount as prescribed by the Victims Compensation Scheme by the State Government.

Such compensation, interim or final, has to be paid either from the Victims Compensation Scheme or any other scheme or fund established under Section 357-A of the Code.

Notably, in the State of Chhattisgarh with effect from 3-8-2011, the Chhattisgarh Victim Compensation Scheme, 2011 enacted under Section 357-A of the Code was in force.

Now, the Supreme Court in the matter of Nipun Saxena and another v. Union of India (2019) 13 SCC 715 and others, held on 5-9-2018 that till the Scheme is framed, the NALSA's Compensation Scheme should function as a guideline to the Special Court for the award of compensation to victims of child sexual abuse under Rule 7 of the POCSO Rules of 2012.

It would be appropriate to mention here that the National Legal Services Authority (NALSA) set up a committee and finalised the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes and submitted before the Supreme Court on 24-4-2018 and on 21-5-2018, the said Scheme was accepted by the Supreme Court and called "the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes".

In the said Scheme, the minimum limit of compensation provided to a rape victim is ₹ 4 lakhs and the upper limit of compensation is ₹ 7 lakhs.

Thereafter, pursuant to the direction of the Supreme Court in Nipun Saxena (supra) by order dated 5-9-2018 and in the exercise of the powers conferred by Section 357-A of the Code, the State of Chhattisgarh framed a scheme known as the Compensation Scheme for Women Victims/ Survivors of Sexual Assault/other er Crimes, 2018 with effect from 2-10- 2018.

Explanation appended to the Scheme provides that in case of Minor Victims under POCSO, it would be applicable.

Observations of the Court

The court was of the view that since the victim was minor and the accused (juvenile) had been convicted for offences under Sections 363, 366 & 376 of the IPC and Sections 3 & 4 of the POCSO Act, the petitioner (rape victim) and her family members were required to be rehabilitated to protect them.

Consequently, the court observed that the recommendation ought to have been made by the Juvenile Justice Board to the DLSA or the SLSA under Section 357A (2) of the Code read with Section 33(8) of the POCSO Act and Rule 7 of the POCSO Rules, 2012, "but that was not done despite the clear cut mandate in that regard."

Taking into consideration that the petitioner was a rape victim, that too a minor and she had been sexually assaulted when the offence took place and she had suffered not only physically but mentally also, and considering the gravity of the offence and that she was required to be rehabilitated and further taking into consideration the provisions contained in the NALSA's Compensation Scheme of 2018 and also keeping in mind the provision enumerated in Section 33(8) of the POCSO Act read with Rule 7 of the POCSO Rules, 2012 / Rule 9 of the POCSO Rules, 2020 (w.e.f. 9-3-2020) and that she had been traumatised heavily, the court held that the petitioner was entitled to total compensation of 7 lakhs under Scheme 2018 and not under Scheme of 2011.

The court stated,

"True it is that the Juvenile Justice Board has not recommended for grant of compensation either under Section 357A(2) or (3) of the Code, but that non-recommendation under Section 357A (2) or (3) of the Code will not preclude this Court to consider and grant compensation to the victim if it is brought to the notice of this Court that the criminal court neither granted compensation under Section 357 of the Code nor made the recommendation to the DLSA or the SLSA to grant compensation under Section 357A of the Code. Thus, it is a fit case where this Court should step-in and consider grant of compensation to the petitioner (rape victim) in its writ jurisdiction." (emphasis supplied)

Accordingly, it was held that the petitioner will be entitled to compensation of ₹ 7 lakhs jointly from respondents No.1 & 2 along with interest.

Respondents No.1 & 2 were directed to deposit the above-stated amount before the Special Judge (POCSO), Raipur within 30 days from the date of order (18^th August).

The Special Judge (POCSO) was directed to disburse the said amount to the victim in accordance with the directions given by the Supreme Court in the matter of General Manager, Kerala State Road Transport Corporation, Trivandrum v. Mrs Susamma Thomas and others AIR 1994 SC 1631 read with Nipun Saxena [(2019) 13 SCC 715].

Lastly, the court observed,

"Before leaving the record, a note of caution is absolutely necessary to the criminal courts as well as for the State Government and its authorities. Similarly, in this case, none appeared on behalf of the prosecution to assist the Juvenile Justice Board and request made by the victim to assist was turned down by the Juvenile Justice Board citing the reason that the State is not represented.

Consequently, the court ordered that the matter be placed before Hon'ble the Chief Justice for consideration,

1. For circulating a copy of this order to the judicial officers manning the criminal courts for perusal and needful action;

2. For sending a copy of this order to the Director, Chhattisgarh State Judicial Academy, Bilaspur to formulate a training programme for the judicial officers in this regard;

3. For sending a copy of this order to the Principal Secretary (Law) and the Director (Prosecution) to take effective and remedial steps to represent the State/interest of victim before all the Juvenile Justice Boards (if appropriate).

Case Details:

Case Title: XYZ v. State of Chhattisgarh and another

Case No.: Writ Petition (Cr.) No.284 of 2020

Quorum: Justice Sanjay K. Agrawal

Appearance: Advocate Ashish Surana (for the Petitioner); Deputy Advocate General Mateen Siddiqui (for the respondent-state)

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