'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 Chhattisgarh High Court recently held in a Writ petition that the Petitioner (the Rape victim) was entitled to compensation (₹7 lakhs along with interest) under Section 357-A of the CrPC read with Section 33(8) of the POCSO Act.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 caseThe 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 VictimIt 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 CourtThe court was of the view that since the victim was minor and the accused (juvenile) had been convicted for offences under...

'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]

Sparsh Upadhyay

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