Gauhati High Court
Asiran Nessa Bibi vs The State Of Assam And 4 Ors on 30 April, 2026
Page No.# 1/29
GAHC010056912024
2026:GAU-AS:5992
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/1574/2024
ASIRAN NESSA BIBI
W/O- LT. ISMAIL HUSSAIN, VILL- KAZAIKATA PART-VI, P.O. KAZAIKATA
P.S. BILASIPARA, DIST.- DHUBRI, ASSAM, PIN- 783348
VERSUS
THE STATE OF ASSAM AND 4 ORS
REPRESENTED BY THE COMMISSIONER AND SECRETARYTO THE GOVT.
OF ASSAM, HOME AND POLITICAL DEPARTMENT, DISPUR, GUWAHATI-06
2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
FINANCE DEPARTMENT
DISPUR
GUWAHATI-06
3:THE ASSAM STATE LEGAL SERVICES AUTHORITY
REPRESENTED BY ITS MEMBER SECRETARY
GHY-01
4:THE CHAIRMAN
DISTRICT LEGAL SERVICES AUTHORITY
DHUBRI
ASSAM
PIN- 783301
5:THE DISTRICT LEGAL SERVICES AUTHORITY
DHUBRI
ASSAM
REPRESENTED BY ITS SECRETARY
P.O. AND P.S. AND DIST.- DHUBRI
ASSAM
PIN- 78330
Page No.# 2/29
Advocate for the Petitioner : MR. M HUSSAIN, MR M KHAN,MR A.K. MOLLAH,MR. R I
MONDAL
Advocate for the Respondent : GA, ASSAM, MRS. R S CHOWDHURY (R-3),SC, ASLSA,MR. R S
CHOUDHURY,SC, FINANCE
BEFORE
HON'BLE MR. JUSTICE KAUSHIK GOSWAMI
ORDER
30.04.2026
Heard Mr. M. Hussain, learned counsel appearing for the writ
petitioner. Also heard Ms. M. Barman, learned Government Advocate,
appearing for the respondent Nos. 1, 4 and 5, Mr. B. Gogoi, learned
Standing Counsel, Finance Department, appearing for the respondent
No. 2 & Ms. R. S. Chowdhury, learned Standing Counsel, ASLSA,
appearing for the respondent No. 3.
2. By way of this writ petition, the petitioner has challenged the
impugned orders dated 03.05.2019 and 19.11.2020 passed by the
Secretary, DLSA, Dhubri, whereby the prayer of the petitioner for
victim compensation has been rejected.
3. The brief facts of the case are that the husband of the petitioner,
namely Ismail Hussain, was allegedly murdered on 15.08.2010.
Accordingly, Bilasipara P.S. Case No. 410/2010 was registered. Upon
completion of investigation, trial commenced before the learned
Additional Sessions Judge, Bilasipara, Dhubri in Sessions Case No.
129/2013. Upon appreciation of the evidence on record, the learned
Page No.# 3/29
trial court acquitted the accused persons. The operative portion of the
judgment reads as under:
“25. Evidence of witnesses is that they did not witness the incident
and they only heard about the murder of Ismail Hussain by some
unknown miscreants. Witnesses not whisper presence of accused
person at place of occurrence. None of the witness even seizure
witness stated that seized goods were recovered either from the,
possession, house of the accused at the instance of the accused
person. Seizure witnesses though admits signature on the seizure
list but did not state that seized good are recovered from the place of
occurrence or from the possession of accused person. It is not the
evidence of prosecution that seized weapons and other good
recovered at the instance of accused persons as led by and shown
by accused. It is not the evidence of prosecution that any of the
witnesses seen accused persons at the place of occurrence before or
after the commission of the offence. None of the witnesses stated
that they have seen deceased with the accused person. Last seen
theory is also not coming from the evidence of P.W.’s. It is also not
the evidence of P.W’s that IO the case found any of the accused
persons at place of occurrence. Seizure list Exbt. 2,3,4,5 clearly
pointed though seized goods were found at place of occurrence but
same were not recovered in presence of accused and or as shown
and led by accused person. There is no piece of evidence available
against the accused persons to connect their link with the murder of
Ismail Hussain.
26. No doubt deceased Ismail Hussain was murdered and he
succumbed to his injury. But available piece of evidence does not
connect any link in between accused persons and death of Ismail
Hussain. There is no chain of circumstances appearing against the
accused persons to book them under prosecution charges.
Prosecution evidence miserably failed to bring home the prosecution
charges against the accused persons. Therefore, I came to my
judicious consideration that prosecution totally failed to establish
charges u/s 147/148/149/341/302 IPC against the accused
persons and I hold accused Haran Ali, Abdul Kuddus @ Kuddus Ali,
Amzad Ali, Abdul Kader @ Kader Ali, Nowsad Ali, Manik Ali, Janik
Ali, Sanjab Ali, Sujaluddin @ Sujal Ali Abul Hussain not guilty under
section 147/148/149/341/302 IPC and set at liberty. Their bail
bond shall remain in force for next six month from the date of
Page No.# 4/29judgment u/s 437A Cr.P.C.”
4. The petitioner thereafter filed an application before the
Secretary, DLSA, Dhubri seeking victim compensation, which came to
be rejected by order dated 03.05.2019. Hence, the present writ
petition.
5. Upon hearing learned counsel for the parties and on perusal of
the materials on record, it appears that the claim of the petitioner was
rejected primarily on two grounds:
(i) that the trial court, while acquitting the accused, did not
grant compensation; and
(ii) that the application was filed belatedly.
6. At the outset, it is evident that the trial court did not advert to
the issue of victim compensation while rendering the judgment of
acquittal. In this context, the law laid down by the Apex Court in
Suresh & Anr. vs. State of Haryana , reported in (2015) 2 SCC
227 assumes significance. Relevant paragraphs of the aforesaid
judgment read as under: –
“11. We had asked learned counsel for the parties to make their
submissions as to applicability of Section 357A of the Code of
Criminal Procedure providing for compensation by the State to the
victims of the crime and also requested Shri L. Nageshwara Rao,
Additional Solicitor General of India to assist the Court on this
aspect.
12. Accordingly, Shri Rao has made his submissions and also
furnished a written note of his submissions mentioning the
legislative history and purpose of the said provision and the
guidelines for determining the quantum of compensation and the
power of Court to grant the interim compensation. We place on record
Page No.# 5/29our appreciation for the valuable contribution of Shri Rao.
13. It would now be appropriate to deal with the issue. The provision
has been incorporated in the Cr.P.C. vide Act V of 2009 and the
amendment duly came into force in view of the Notification dated
31st December, 2009. The object and purpose of the provision is to
enable the Court to direct the State to pay compensation to the victim
where the compensation under Section 357 was not adequate or
where the case ended in acquittal or discharge and the victim was
required to be rehabilitated. The provision was incorporated on the
recommendation of 154th Report of Law Commission. It recognises
compensation as one of the methods of protection of victims. The
provision has received the attention of this Court in several decisions
including Ankush Shivaji Gaikwad vs. State of Maharashtra, In Re:
Indian Woman says gang-raped on orders of Village Court published
in Business and Financial News, Mohommad Haroon vs. Union of
India[4] and Laxmi vs. Union of India.
14. In Abdul Rashid vs. State of Odisha & Ors., to which one of us
(Goel, J.) was party, it was observed:- (SCC OnLine Ori Paras6-10)
“6. Question for consideration is whether the responsibility of the State
ends merely by registering a case, conducting investigation and initiating
prosecution and whether apart from taking these steps, the State has
further responsibility to the victim. Further question is whether the Court
has legal duty to award compensation irrespective of conviction or
acquittal. When the State fails to identify the accused or fails to collect and
present acceptable evidence to punish the guilty, the duty to give
compensation remains. Victim of a crime or his kith and kin have
legitimate expectation that the State will punish the guilty and compensate
the victim. There are systemic or other failures responsible for crime
remaining unpunished which need to be addressed by improvement in
quality and integrity of those who deal with investigation and prosecution,
apart from improvement of infrastructure but punishment of guilty is not
the only step in providing justice to victim. Victim expects a mechanism for
rehabilitative measures, including monetary compensation. Such
compensation has been directed to be paid in public law remedy with
reference to Article 21. In numerous cases, to do justice to the victims, the
Hon’ble Supreme Court has directed payment of monetary compensation
as well as rehabilitative settlement where State or other authorities failed
to protect the life and liberty of victims. For example, Kewal Pati Vs. State
of U.P. (1995) 3 SCC 600 (death of prisoner by co-prisoner), Supreme
Court Legal Aid Committee Vs. State of Bihar, (1991) 3 SCC 482 (failure
Page No.# 6/29to provide timely medical aid by jail authorities, Chairman, Rly. Board Vs.
Chandrima Das, (2000) 2 SCC 465 (rape of Bangladeshi national by
Railway staff), Nilabati Behera Vs. State of Orissa, (1993) 2 SCC 746
(Custodial death), Khatri (I) Vs. State of Bihar (1981) 1 SCC 623
(prisoners’ blinding by jail staff), Union Carbide Corporation Vs. Union of
India, (1989) 1 SCC 674 (gas leak victims).
7. Expanding scope of Article 21 is not limited to providing compensation
when the State or its functionaries are guilty of an act of commission but
also to rehabilitate the victim or his family where crime is committed by an
individual without any role of the State or its functionary. Apart from the
concept of compensating the victim by way of public law remedy in writ
jurisdiction, need was felt for incorporation of a specific provision for
compensation by courts irrespective of the result of criminal prosecution.
Accordingly, Section 357A has been introduced in the Cr.P.C. and a
Scheme has been framed by the State of Odisha called ‘The Odisha Victim
Compensation Scheme, 2012’. Compensation under the said Section is
payable to victim of a crime in all cases irrespective of conviction or
acquittal. The amount of compensation may be worked out at an
appropriate forum in accordance with the said Scheme, but pending such
steps being taken, interim compensation ought to be given at the earliest in
any proceedings.
8. In Ankush Vhivaji Gaikwad Vs. State of Maharashtra, the matter was
reviewed by the Hon’ble Supreme Court with reference to development in
law and it was observed : (SCC pp. 785-91 & 797, paras 33-48 & 66-67)
’33. The long line of judicial pronouncements of this Court
recognised in no uncertain terms a paradigm shift in the
approach towards victims of crimes who were held entitled to
reparation, restitution or compensation for loss or injury suffered
by them. This shift from retribution to restitution began in the
mid 1960s and gained momentum in the decades that followed.
Interestingly the clock appears to have come full circle by the law
makers and courts going back in a great measure to what was in
ancient times common place. Harvard Law Review (1984) in an
article on “Victim Restitution in Criminal Law Process: A
Procedural Analysis” sums up the historical perspective of the
concept of restitution in the following words:
‘Far from being a novel approach to sentencing, restitution
has been employed as a punitive sanction throughout
history. In ancient societies, before the conceptual
separation of civil and criminal law, it was standard practice
Page No.# 7/29to require an offender to reimburse the victim or his family
for any loss caused by the offense. The primary purpose of
such restitution was not to compensate the victim, but to
protect the offender from violent retaliation by the victim or
the community. It was a means by which the offender could
buy back the peace he had broken. As the state gradually
established a monopoly over the institution of punishment,
and a division between civil and criminal law emerged, the
victim’s right to compensation was incorporated into civil
law.’
34. With modern concepts creating a distinction between civil
and criminal law in which civil law provides for remedies to
award compensation for private wrongs and the criminal law
takes care of punishing the wrong doer, the legal position that
emerged till recent times was that criminal law need not concern
itself with compensation to the victims since compensation was a
civil remedy that fell within the domain of the civil Courts. This
conventional position has in recent times undergone a notable
sea change, as societies world over have increasingly felt that
victims of the crimes were being neglected by the legislatures and
the Courts alike. Legislations have, therefore, been introduced in
many countries including Canada, Australia, England, New
Zealand, Northern Ireland and in certain States in the USA
providing for restitution/reparation by Courts administering
criminal justice.
35. England was perhaps the first to adopt a separate statutory
scheme for victim compensation by the State under the Criminal
Injuries Compensation Scheme, 1964. Under the Criminal Justice
Act, 1972 the idea of payment of compensation by the offender
was introduced. The following extract from the Oxford Handbook
of Criminology (1994 Edn., p.1237-1238), which has been quoted
with approval in Delhi Domestic Working Women’s Forum v.
Union of India and Ors. (1995) 1 SCC 14 is apposite: (SCC pp.20-
21, para-16)
’16……Compensation payable by the offender was
introduced in the Criminal Justice Act 1972 which gave the
Courts powers to make an ancillary order for compensation
in addition to the main penalty in cases where ‘injury’, loss,
or damage’ had resulted. The Criminal Justice Act 1982
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made it possible for the first time to make a compensation
order as the sole penalty. It also required that in cases where
fines and compensation orders were given together, the
payment of compensation should take priority over the fine.
These developments signified a major shift in penology
thinking, reflecting the growing importance attached to
restitution and reparation over the more narrowly
retributive aims of conventional punishment. The Criminal
Justice Act 1982 furthered this shift. It required courts to
consider the making of a compensation order in every case
of death, injury, loss or damage and, where such an order
was not given, imposed a duty on the court to give reasons
for not doing so. It also extended the range of injuries
eligible for compensation. These new requirements mean
that if the court fails to make a compensation order it must
furnish reasons. Where reasons are given, the victim may
apply for these to be subject to judicial review……
The 1991 Criminal Justice Act contains a number of
provisions which directly or indirectly encourage an even
greater role for compensation.'”
(emphasis
supplied)
36. In the United States of America, the Victim and Witness
Protection Act of 1982 authorizes a federal court to award
restitution by means of monetary compensation as a part of a
convict’s sentence. Section 3553(a)(7) of Title 18 of the Act
requires Courts to consider in every case “the need to provide
restitution to any victims of the offense”. Though it is not
mandatory for the Court to award restitution in every case, the
Act demands that the Court provide its reasons for denying the
same. Section 3553(c) of Title 18 of the Act states as follows:
‘If the court does not order restitution or orders only partial
restitution, the court shall include in the statement the reason
thereof.’
37. In order to be better equipped to decide the quantum of
money to be paid in a restitution order, the United States federal
law requires that details such as the financial history of the
offender, the monetary loss caused to the victim by the offence,
Page No.# 9/29etc. be obtained during a Presentence Investigation, which is
carried out over a period of 5 weeks after an offender is
convicted.
38. Domestic/Municipal Legislation apart even the UN General
Assembly recognized the right of victims of crimes to receive
compensation by passing a resolution titled “Declaration on Basic
Principles of Justice for Victims and Abuse of Power, 1985”. The
Resolution contained the following provisions on restitution and
compensation:
‘Restitution
8. 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 victimization, the provision of services and the
restoration of rights.
9. 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.
10. 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 a community.
11. 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 victimizing act or omission occurred is no
longer in existence, the State or Government successor in
title should provide restitution to the victims.
Compensation
12. When compensation is not fully available from the
Page No.# 10/29offender 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 victimization.
13. 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 in those cases where
the State of which the victim is a national is not in a position
to compensate the victim for the harm.’
39. The UN General Assembly passed a resolution titled “Basic
Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International
Human Rights Law and Serious Violations of International
Humanitarian Law, 2005” which deals with the rights of victims
of international crimes and human rights violations. These
Principles (while in their Draft form) were quoted with approval
by this Court in State of Gujarat and Anr. v. Hon’ble High Court of
Gujarat in the following words: (Scc pp. 432-33, para 94)
’94. In recent years the right to reparation for victims of
violation of human rights is gaining ground. United Nations
Commission of Human Rights has circulated draft Basic
Principles and Guidelines on the Right to Reparation for
Victims of Violation of Human Rights, (see Annexure).
40. Amongst others the following provisions on restitution and
compensation have been made:
’12. Restitution shall be provided to reestablish the situation
that existed prior to the violations of human rights or
international humanitarian law. Restitution requires inter
alia, restoration of liberty, family life citizenship, return to
one’s place of residence, and restoration of employment or
property.
13. Compensation shall be provided for any economically
Page No.# 11/29Assessable damage resulting from violations of human
rights or international humanitarian law, such as:
(a) Physical or mental harm, including pain, suffering and
emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of
earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines
and medical services.’
41. Back home the Code of Criminal Procedure of 1898 contained
a provision for restitution in the form of Section 545, which stated
in Sub-clause 1(b) that the Court may direct ‘payment to any
person of compensation for any loss or injury caused by the
offence when substantial compensation is, in the opinion of the
Court, recoverable by such person in a Civil Court’.
42. The Law Commission of India in its 41st Report submitted in
1969 discussed Section 545 of the Code of Criminal Procedure of
1898 extensively and stated as follows:
“46.12.. Section 545- Under Clause (b) of Sub-section (1) of
Section 545, the Court may direct ‘in the payment to any
person of compensation for any loss or injury caused by the
offence when substantial compensation is, in the opinion of
the Court, recoverable by such person in a Civil Court.’
The significance of the requirement that compensation
should be recoverable in a Civil Court is that the act which
constitutes the offence in question should also be a tort. The
word “substantial” appears to have been used to exclude
cases where only nominal damages would be recoverable.
We think it is hardly necessary to emphasise this aspect,
since in any event it is purely within the discretion of the
Criminal Courts to order or not to order payment of
compensation, and in practice, they are not particularly
liberal in utilizing this provision. We propose to omit the
word ‘substantial’ from the clause.”
43. On the basis of the recommendations made by the
Page No.# 12/29
Law Commission in the above report, the Government of
India introduced the Code of Criminal Procedure Bill,
1970, which aimed at revising Section 545 and
introducing it in the form of Section 357 as it reads
today. The Statement of Objects and Reasons
underlying the Bill was as follows:
‘Clause 365 [now Section 357] which corresponds to Section
545 makes provision for payment of compensation to
victims of crimes. At present such compensation can be
ordered only when the Court imposes a fine the amount is
limited to the amount of fine. Under the new provision,
compensation can be awarded irrespective of whether the
offence is punishable with fine and fine is actually imposed,
but such compensation can be ordered only if the accused is
convicted. The compensation should be payable for any loss
or injury whether physical or pecuniary and the Court shall
have due regard to the nature of injury, the manner of
inflicting the same, the capacity of the accused to pay and
other relevant factors.”
44. As regards the need for Courts to obtain comprehensive
details regarding the background of the offender for the purpose
of sentencing, the Law Commission in its 48th Report on “Some
Questions Under the Code of Criminal Procedure Bill, 1970″
submitted in 1972 discussed the matter in some detail, stating as
follows:
’45. Sentencing- It is now being increasingly recognised that
a rational and consistent sentencing policy requires the
removal of several deficiencies in the present system. One
such deficiency is a lack of comprehensive information as to
the characteristics and background of the offender.
The aims of sentencing–themselves obscure–become all the
more so in the absence of comprehensive information on
which the correctional process is to operate. The public as
well as the as the courts themselves are in the dark about
judicial approach in this regard.
We are of the view that the taking of evidence as to the
circumstances relevant to sentencing should be encouraged,
and both the prosecution and the accused should be allowed
Page No.# 13/29to cooperate in the process.’
45. The Code of Criminal Procedure of 1973 which incorporated
the changes proposed in the said Bill of 1970 states in its Objects
and Reasons that Section 357 was “intended to provide relief to
the proper sections of the community” and that the
amended CrPC empowered the Court to order payment of
compensation by the accused to the victims of crimes “to a larger
extent” than was previously permissible under the Code. The
changes brought about by the introduction of Section 357 were
as follows:
(i) The word ‘substantial’ was excluded.
(ii) A new Sub-section (3) was added which provides for
payment of compensation even in cases where the fine does
not form part of the sentence imposed.
(iii) Sub-section (4) was introduced which states that an
order awarding compensation may be made by an Appellate
Court or by the High Court or Court of Session when
exercising its powers of revision.
46. The amendments to the Code of Criminal Procedure brought
about in 2008 focused heavily on the rights of victims in a
criminal trial, particularly in trials relating to sexual offences.
Though the 2008 amendments left Section 357 unchanged, they
introduced Section 357A under which the Court is empowered to
direct the State to pay compensation to the victim in such cases
where ‘the compensation awarded Under Section 357 is not
adequate for such rehabilitation, or where the case ends in
acquittal or discharge and the victim has to be rehabilitated.’
Under this provision, even if the accused is not tried but the victim
needs to be rehabilitated, the victim may request the State or
District Legal Services Authority to award him/her
compensation. This provision was introduced due to the
recommendations made by the Law Commission of India in its
152nd and 154th Reports in 1994 and 1996 respectively.
47. The 154th Law Commission Report on the Code of Criminal
Procedure devoted an entire chapter to ‘Victimology’ in which the
growing emphasis on victim’s rights in criminal trials was
discussed extensively as under:
‘1. Increasingly the attention of criminologists, penologists
Page No.# 14/29and reformers of criminal justice system has been directed
to victimology, control of victimization and protection of
victims of crimes. Crimes often entail substantive harms to
people and not merely symbolic harm to the social order.
Consequently the needs and rights of victims of crime should
receive priority attention in the total response to crime. One
recognized method of protection of victims is compensation
to victims of crime. The needs of victims and their family are
extensive and varied.
** * *
9.1 The principles of victimology has foundations in Indian
constitutional jurisprudence. The provision on Fundamental
Rights (Part III) and Directive Principles of State Policy (Part
IV) form the bulwark for a new social order in which social
and economic justice would blossom in the national life of
the country (Article 38). Article 41 mandates inter alia that
the State shall make effective provisions for ‘securing the
right to public assistance in cases of disablement and in
other cases of undeserved want.’ So also Article 51A makes
it a fundamental duty of every Indian citizen, inter alia ‘to
have compassion for living creatures’ and to ‘develop
humanism’. If emphatically interpreted and imaginatively
expanded these provisions can form the constitutional
underpinnings for victimology.
9.2 However, in India the criminal law provides
compensation to the victims and their dependants only in a
limited manner. Section 357 of the Code of Criminal
Procedure incorporates this concept to an extent and
empowers the Criminal Courts to grant compensation to the
victims.
** * *
11. In India the principles of compensation to crime victims
need to be reviewed and expanded to cover all cases. The
compensation should not be limited only to fines, penalties
and forfeitures realized. The State should accept the
principle of providing assistance to victims out of its own
funds…..”
Page No.# 15/29
48. The question then is whether the plenitude of the power
vested in the Courts Under Section 357 & 357-A, notwithstanding,
the Courts can simply ignore the provisions or neglect the exercise
of a power that is primarily meant to be exercised for the benefit
of the victims of crimes that are so often committed though less
frequently punished by the Courts. In other words, whether Courts
have a duty to advert to the question of awarding compensation
to the victim and record reasons while granting or refusing relief
to them?
** * *
66. To sum up: While the award or refusal of compensation in a
particular case may be within the Court’s discretion, there exists
a mandatory duty on the Court to apply its mind to the question
in every criminal case. Application of mind to the question is best
disclosed by recording reasons for awarding/refusing
compensation. It is axiomatic that for any exercise involving
application of mind, the Court ought to have the necessary
material which it would evaluate to arrive at a fair and
reasonable conclusion. It is also beyond dispute that the occasion
to consider the question of award of compensation would
logically arise only after the court records a conviction of the
accused. Capacity of the accused to pay which constitutes an
important aspect of any order Under Section 357 Code of
Criminal Procedure would involve a certain enquiry albeit
summary unless of course the facts as emerging in the course of
the trial are so clear that the court considers it unnecessary to do
so. Such an enquiry can precede an order on sentence to enable
the court to take a view, both on the question of sentence and
compensation that it may in its wisdom decide to award to the
victim or his/her family.
67. Coming then to the case at hand, we regret to say that the
trial Court and the High Court appear to have remained oblivious
to the provisions of Section 357 Code of Criminal Procedure. The
judgments under appeal betray ignorance of the Courts below
about the statutory provisions and the duty cast upon the Courts.
Remand at this distant point of time does not appear to be a good
option either. This may not be a happy situation but having
regard to the facts and the circumstances of the case and the time
lag since the offence was committed, we conclude this chapter in
the hope that the courts remain careful in future.’
Page No.# 16/29
9. In Rohtash @ Pappu Vs. State of Haryana (Crl.A. No. 250 of 1999
decided on 1.4.2008, a Division Bench of the Punjab & Haryana High
Court observed:
’18. May be, inspite of best efforts, the State fails in apprehending
and punishing the guilty but that does not prevent the State from
taking such steps as may reassure and protect the victims of
crime. Should justice to the victims depend only on the
punishment of the guilty? Should the victims have to wait to get
justice till such time that the handicaps in the system which result
in large scale acquittals of guilty, are removed? It can be a long
and seemingly endless wait. The need to address cry of victims of
crime, for whom the Constitution in its Preamble holds out a
guarantee for ‘justice’ is paramount. How can the tears of the
victim be wiped off when the system itself is helpless to punish the
guilty for want of collection of evidence or for want of creating an
environment in which witnesses can fearlessly present the truth
before the Court? Justice to the victim has to be ensured
irrespective of whether or not the criminal is punished.
19. The victims have right to get justice, to remedy the harm
suffered as a result of crime. This right is different from and
independent of the right to retribution, responsibility of which
has been assumed by the State in a society governed by Rule of
Law. But if the State fails in discharging this responsibility, the
State must still provide a mechanism to ensure that the victim’s
right to be compensated for his injury is not ignored or defeated.
20. Right of access to justice under Article 39-A and principle of
fair trial mandate right to legal aid to the victim of the crime. It
also mandates protection to witnesses, counselling and medical
aid to the victims of the bereaved family and in appropriate cases,
rehabilitation measures including monetary compensation. It is a
paradox that victim of a road accident gets compensation under
no fault theory, but the victim of crime does not get any
compensation, except in some cases where the accused is held
guilty, which does not happen in a large percentage of cases.
21. Though a provision has been made for compensation to
victims under Section 357 Cr.P.C., there are several inherent
limitations. The said provision can be invoked only upon
conviction, that too at the discretion of the judge and subject to
financial capacity to pay by the accused. The long time taken in
disposal of the criminal case is another handicap for bringing
Page No.# 17/29justice to the victims who need immediate relief, and cannot wait
for conviction, which could take decades. The grant of
compensation under the said provision depends upon financial
capacity of the accused to compensate, for which, the evidence is
rarely collected. Further, victims are often unable to make a
representation before the Court for want of legal aid or
otherwise. This is perhaps why even on conviction this provision is
rarely pressed into service by the Courts. Rate of conviction being
quite low, inter-alia, for competence of investigation, apathy of
witnesses or strict standard of proof required to ensure that
innocent is not punished, the said provision is hardly adequate to
address to need of victims.
In Hari Krishan and State of Haryana v. Sikhbir Singh AIR
1998 SC 2127, referring to provisions for compensation, the
Hon’ble Supreme Court observed:-
’10. …… 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 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.’
22. It is imperative to educate the investigating agency as well as
the trial Judges about the need to provide access to justice to
victims of crime, to collect evidence about financial status of the
accused. It is also imperative to create mechanisms for
rehabilitation measures by way of medical and financial aid to
the victims. The remedy in civil law of torts against the injury
caused by the accused is grossly inadequate and illusory.
23. This unsatisfactory situation is in contrast to global
developments and suggestions of Indian experts as well. Some of
the significant developments in this regard may be noticed as
under:-
1) UN Declaration of Basic Principles of Justice for Victims
of Crime and Abuse of Power, 1985, highlighting the
following areas:-
Page No.# 18/29
(i) Access to Justice and fair treatment;
(ii) Restitution;
(iii) Compensation;
(iv) Assistance.
2) Council of Europe Recommendation on the Position of the
Victim in the Framework of Criminal Law and Procedure,
1985.
3) Statement of the Victims’ Rights in the Process of Criminal
Justice, issued by the European Forum for Victims’ Services in
1996.
4) European Union Framework Decision on the Standing of
Victims in Criminal Proceedings.
5) Council of Europe Recommendations on assistance to
Crime victims adopted on 14.6.2006.
6) 152nd and 154th report of the Law Commission of India,
1994 and 1996 respectively, recommending introduction of
Section 357-A in criminal procedure code, prescribing, inter-
alia, compensation to the victims of crime.
7) Recommendations of the Malimath Committee, 2003.
24. The subject matter has been dealt with by experts from over 40
countries in series of meetings and a document has been developed
in cooperation with United Nations Office at Vienna, Centre for
International Crime Prevention and the compilation under the
heading “Handbook on Justice for Victims” which deals with
various aspects of impact of victimization, victims assistance
programmes and role and responsibility of frontline professionals
and others to victims. The South African Law Commission, in its
“Issue Paper 7” (1997) under the heading “Sentencing Restorative
Justice: Compensation for victims of crime and victim
empowerment” has deliberated on various relevant aspects of this
issue.
** * *
27. In Malimath Committee Report (March 2003), it was
observed:-
‘6.7.1 Historically speaking, Criminal Justice System seems
to exist to protect the power, the privilege and the values
Page No.# 19/29of the elite sections in society. The way crimes are defined
and the system is administered demonstrate that there is
an element of truth in the above perception even in
modern times. However, over the years the dominant
function of criminal justice is projected to be protecting all
citizens from harm to either their person or property, the
assumption being that it is the primary duty of a State
under rule of law. The State does this by depriving
individuals of the power to take law into their own hands
and using its power to satisfy the sense of revenge through
appropriate sanctions. The State (and society), it was
argued, is itself the victim when a citizen commits a crime
and thereby questions its norms and authority. In the
process of this transformation of torts to crimes, the focus
of attention of the system shifted from the real victim who
suffered the injury (as a result of the failure of the state)
to the offender and how he is dealt with by the State.
Criminal Justice came to comprehend all about crime, the
criminal, the way he is dealt with, the process of proving
his guilt and the ultimate punishment given to him. The
civil law was supposed to take care of the monetary and
other losses suffered by the victim. Victims were
marginalized and the state stood forth as the victim to
prosecute and punish the accused.
6.7.2 What happens to the right of victim to get justice to
the harm suffered? Well, he can be satisfied if the state
successfully gets the criminal punished to death, a prison
sentence or fine. How does he get justice if the State does
not succeed in so doing? Can he ask the State to
compensate him for the injury? In principle, that should be
the logical consequence in such a situation; but the State
which makes the law absolves itself.
** * *
6.8.1 The principle of compensating victims of crime has
for long been recognized by the law though it is
recognized more as a token relief rather than part of a
punishment or substantial remedy. When the sentence of
fine is imposed as the sole punishment or an additional
punishment, the whole or part of it may be directed to be
paid to the person having suffered loss or injury as per the
Page No.# 20/29discretion of the Court (Section 357 Cr.PC). Compensation
can be awarded only if the offender has been convicted of
the offence with which he is charged.
** * *
6.8.7 Sympathizing with the plight of victims under
Criminal Justice administration and taking advantage of
the obligation to do complete justice under the Indian
Constitution in defense of human rights, the Supreme
Court and High Courts in India have of late evolved the
practice of awarding compensatory remedies not only in
terms of money but also in terms of other appropriate
reliefs and remedies. Medical justice for the Bhagalpur
blinded victims, rehabilitative justice to the communal
violence victims and compensatory justice to the Union
Carbide victims are examples of this liberal package of
reliefs and remedies forged by the apex Court. The recent
decisions in Nilabati Behera V. State of Orissa (1993 2 SCC
746) and in Chairman, Railway Board V. Chandrima
Das are illustrative of this new trend of using
Constitutional jurisdiction to do justice to victims of crime.
Substantial monetary compensations have been awarded
against the instrumentalities of the state for failure to
protect the rights of the victim.
6.8.8 These decisions have clearly acknowledged the need
for compensating victims of violent crimes irrespective of
the fact whether offenders are apprehended or punished.
The principle invoked is the obligation of the state to
protect basic rights and to deliver justice to victims of
crimes fairly and quickly. It is time that the Criminal
Justice System takes note of these principles of Indian
Constitution and legislate on the subject suitably.’ ‘
10. In Re: State of Assam & 2 Others (PIL (Suo Motu) No.
26/2013) vide judgement dated 24.4.2013, a Division Bench of
Gauhati High Court observed :
‘We have heard learned counsel for the parties on the
issue whether in absence of any prohibition under the
scheme, interim compensation ought to be paid at the
earliest to the victim irrespective of stage of enquiry or
trial, either on application of the victim or suo motu by the
Page No.# 21/29Court.
In Savitri v. Govind Singh Rawat, (1985) 4 SCC 337, question of
interim maintenance under Section 125 Cr.P.C. was considered and
it was observed : (SCC pp.339-42, paras 3 & 6)
‘3. It is true that there is no express provision in the Code
which authorises a Magistrate to make an interim order
directing payment of maintenance pending disposal of an
application for maintenance. The Code does not also
expressly prohibit the making of such an order. The
question is whether such a power can be implied to be
vested in a Magistrate having regard to the nature of the
proceedings under Section 125 and other cognate
provisions found in Chapter IX of the Code which is
entitled “Order For Maintenance of Wives, Children and
Parents”. Section 125 of the Code confers power on a
Magistrate of the first class to direct a person having
sufficient means but who neglects or refuses to maintain
(i) his wife, unable to maintain herself, or (ii) his
legitimate or illegitimate minor child, whether married or
not, unable to maintain itself, or (iii) his legitimate or
illegitimate child (not being a married daughter) who has
attained majority, where such child is, by reason of any
physical or mental abnormality or injury unable to
maintain itself or (iv) his father or mother, unable to
maintain himself or herself, upon proof of such neglect or
refusal, to pay a monthly allowance for the maintenance
of his wife or such child, father or mother, as the case may
be, at such monthly rate not exceeding five hundred
rupees in the whole as such Magistrate thinks fit. Such
allowance shall be payable from the date of the order, or,
if so ordered from the date of the application for
maintenance. Section 126 of the Code prescribes the
procedure for the disposal of an application made
under Section 125. Section 127 of the Code provides for
alteration of the rate of maintenance in the light of the
changed circumstances or an order or decree of a
competent civil court. Section 128 of the Code deals with
the enforcement of the order of maintenance. It is not
necessary to refer to the other details contained in the
above-said provisions.
Page No.# 22/29
** * *
6. In view of the foregoing it is the duty of the court to
interpret the provisions in Chapter IX of the Code in such a
way that the construction placed on them would not
defeat the very object of the legislation. In the absence of
any express prohibition, it is appropriate to construe the
provisions in Chapter IX as conferring an implied power
on the Magistrate to direct the person against whom an
application is made under Section 125 of the Code to pay
some reasonable sum by way of maintenance to the
applicant pending final disposal of the application. It is
quite common that applications made under Section
125 of the Code also take several months for being
disposed of finally. In order to enjoy the fruits of the
proceedings under Section 125, the applicant should be
alive till the date of the final order and that the applicant
can do in a large number of cases only if an order for
payment of interim maintenance is passed by the court.
Every court must be deemed to possess by necessary
intendment all such powers as are necessary to make its
orders effective. This principle is embodied in the maxim
“ubi aliquid conceditur, conceditur et id sine quo res ipsa
esse non potest” (Where anything is conceded, there is
conceded also anything without which the thing itself
cannot exist). [Vide Earl Jowitt’s Dictionary of English
Law, 1959 Edn., p. 1797.] Whenever anything is required
to be done by law and it is found impossible to do that
thing unless something not authorised in express terms be
also done then that something else will be supplied by
necessary intendment. Such a construction though it may
not always be admissible in the present case however
would advance the object of the legislation under
consideration. A contrary view is likely to result in grave
hardship to the applicant, who may have no means to
subsist until the final order is passed. There is no room for
the apprehension that the recognition of such implied
power would lead to the passing of interim orders in a
large number of cases where the liability to pay
maintenance may not exist. It is quite possible that such
contingency may arise in a few cases but the prejudice
caused thereby to the person against whom it is made is
Page No.# 23/29
minimal as it can be set right quickly after hearing both
the parties. The Magistrate may, however, insist upon an
affidavit being filed by or on behalf of the applicant
concerned stating the grounds in support of the claim for
interim maintenance to satisfy himself that there is a
prima facie case for making such an order. Such an order
may also be made in an appropriate case ex parte pending
service of notice of the application subject to any
modification or even an order of cancellation that may be
passed after the respondent is heard. If a civil court can
pass such interim orders on affidavits, there is no reason
why a Magistrate should not rely on them for the purpose
of issuing directions regarding payment of interim
maintenance. The affidavit may be treated as supplying
prima facie proof of the case of the applicant. If the
allegations in the application or the affidavit are not true,
it is always open to the person against whom such an
order is made to show that the order is unsustainable.
Having regard to the nature of the jurisdiction exercised
by a Magistrate under Section 125 of the Code, we feel
that the said provision should be interpreted as conferring
power by necessary implication on the Magistrate to pass
an order directing a person against whom an application
is made under it to pay a reasonable sum by way of
interim maintenance subject to the other conditions
referred to therein pending final disposal of the
application. In taking this view we have also taken note of
the provisions of Section 7(2)(a) of the Family Courts Act,
1984 (Act 66 of 1984) passed recently by Parliament
proposing to transfer the jurisdiction exercisable by
Magistrates under Section 125 of the Code to the Family
Courts constituted under the said Act.’
Above view has been reiterated, inter alia, in Shail Kumari Devi v.
Krishan Bhagwan Pathak, (2008)9 SCC 632.
We are of the view that above observations support the
submission that interim compensation ought to be paid at
the earliest so that immediate need of victim can be met.
For determining the amount of interim compensation, the
Court may have regard to the facts and circumstances of
individual cases including the nature of offence, loss
Page No.# 24/29
suffered and the requirement of the victim. On an interim
order being passed by the Court, the funds available with
the District/State Legal Services Authorities may be
disbursed to the victims in the manner directed by the
Court, to be adjusted later in appropriate proceedings. If
the funds already allotted get exhausted, the State may
place further funds at the disposal of the Legal Services
Authorities.’ ‘ (emphasis in original)
15. We are informed that 25 out of 29 State Governments have
notified victim compensation schemes. The schemes specify
maximum limit of compensation and subject to maximum limit, the
discretion to decide the quantum has been left with the State/District
legal authorities. It has been brought to our notice that even though
almost a period of five years has expired since the enactment of
Section 357A, the award of compensation has not become a rule and
interim compensation, which is very important, is not being granted
by the Courts. It has also been pointed out that the upper limit of
compensation fixed by some of the States is arbitrarily low and is not
in keeping with the object of the legislation.
16. We are of the view that it is the duty of the Courts, on taking
cognizance of a criminal offence, to ascertain whether there is
tangible material to show commission of crime, whether the victim is
identifiable and whether the victim of crime needs immediate
financial relief. On being satisfied on an application or on its own
motion, the Court ought to direct grant of interim compensation,
subject to final compensation being determined later. Such duty
continues at every stage of a criminal case where compensation
ought to be given and has not been given, irrespective of the
application by the victim. At the stage of final hearing it is obligatory
on the part of the Court to advert to the provision and record a
finding whether a case for grant of compensation has been made out
and, if so, who is entitled to compensation and how much. Award of
such compensation can be interim. Gravity of offence and need of
victim are some of the guiding factors to be kept in mind, apart from
such other factors as may be found relevant in the facts and
circumstances of an individual case.”
7. A careful reading of the aforesaid decision makes it abundantly
clear that the scheme under Section 357A Cr.P.C. is independent of the
Page No.# 25/29
outcome of the criminal trial. The Apex Court has unequivocally held
that compensation is not contingent upon conviction and may be
granted even in cases of acquittal where the victim requires
rehabilitation.
8. The extracted passages further illuminate two crucial legal
principles which are directly attracted in the present case:
(i) First, there exists a mandatory duty on the court to apply its
mind to the question of compensation in every criminal case and
record reasons for granting or refusing the same.
(ii) Second, the obligation to compensate the victim survives even
where the prosecution fails to secure conviction, as the focus of
Section 357A is on victim rehabilitation rather than offender
liability.
9. In the present case, the trial court, while acquitting the accused,
failed to discharge this mandatory obligation. Such omission cannot,
however, operate to the prejudice of the victim, nor can it be used as a
ground by the DLSA to deny compensation.
10. The rejection of the petitioner’s claim by the Secretary, DLSA,
Dhubri on the ground that no compensation was awarded by the trial
court is therefore contrary to the statutory mandate and the law
declared by the Apex Court. The role of the DLSA under the Victim
Compensation Scheme is not merely passive or consequential to the
trial court’s order, but is an independent statutory responsibility to
assess and grant compensation where warranted.
Page No.# 26/29
11. The second ground for rejection, namely delay, is equally
untenable. The Apex Court in Suresh (supra) itself dealt with a
situation where the offence had occurred much earlier, yet
compensation was directed subsequently. This demonstrates that the
right to compensation under Section 357A is not defeated by lapse of
time.
12. The Calcutta High Court in Piyali Dutta vs. State of West
Bengal, reported in 2017 CriLJ 4041, has also lucidly held:
“15. Section 357A is a beneficial piece of legislation introduced for
the benefit of the victims of a crime. It does not prescribe a time limit.
It does not say that, a crime occurring prior to a specified date is not
covered thereunder. As noted above, it is not introducing a criminal
liability. It is time neutral, that is to say that, it does not distinguish
between victims of a crime happening prior to the introduction of the
section to the statute with those incidents of crime happening post its
introduction in the statute book. The section itself not making any
distinction between victims on the basis of the time of occurrence of
the crime, the same cannot be read into it. The plain reading of the
section does not permit one to interpret the same to mean that, it
contemplates differential treatment of victims of the specified crimes
on the basis of time of occurrence of such crime. Such a difference if
sought to be read into Section 357A of the Code of Criminal
Procedure, 1973 it would do violence to it. It would not be an
intelligible or a reasonable differentia to distinguish between victims
of crime on the basis of time of occurrence, more so when the section
itself is silent on time. The requirement on the State to extend
compensation for loss and injury suffered by reason of the crime and
rehabilitation of the victims of the specified crimes are universal to all
victims irrespective of the time of occurrence of the crime. Victims
have not been segregated on the basis of time of occurrence of the
crime. Segregation on such basis is unacceptable. It would militate
against the right to equality and equal treatment by the State
guaranteed under the Constitution of India. In such perspective, the
victims of the specified crimes are similarly situated and
circumstanced. Therefore, to segregate them on the basis of time of
occurrence of crime, would be unjust, improper and militate against
Page No.# 27/29the very object of the Section 357A of the Code of Criminal Procedure,
1973, and the fundamental rights of the victims to be treated
equally, fairly and justly. Section 357A, requires every State
Government in coalition with the Central Government to prepare
schemes for the purpose of compensation to the victims or their
dependents who has suffered loss and injury and who require
rehabilitation. Sub-section (3) allows the Trial Court, at the
conclusion of the trial, to make recommendation for compensation, if
the Court is satisfied that, the compensation awarded under Section
357A is not adequate and the victim has to be rehabilitated. It allows
the Trial Court to undertake such exercise in cases where there is an
acquittal or discharge of the accused. Victim is defined in Section
2(wa) of the Code of Criminal Procedure, 1973. It means a person
who has suffered a loss or injury caused by an act or omission for
which an accused person has been charged. Such expression
includes his/her guardian/legal heir.”
13. The above exposition makes it clear that Section 357A is a
beneficial and time-neutral provision, and any interpretation
introducing limitation or delay as a disqualifying factor would defeat its
very object.
14. Applying the aforesaid principles to the present case, the delay in
approaching the DLSA cannot be a ground to deny compensation,
particularly when the loss suffered, namely the death of the
petitioner’s husband is undisputed.
15. On a cumulative consideration of the law laid down in the
aforesaid decisions and the facts of the present case, this Court finds
that:
(i) the petitioner is a victim within the meaning of Section 2(wa)
Cr.P.C.;
(ii) the offence of murder resulting in death is undisputed;
Page No.# 28/29
(iii) the acquittal of the accused does not extinguish the petitioner’s
entitlement;
(iv) the failure of the trial court to consider compensation cannot
prejudice the petitioner; and
(v) the ground of delay is legally unsustainable.
16. This court is also mindful that the jurisdiction under Article 226 of
the Constitution of India is wide and plenary in nature, designed to
reach injustice wherever it is found. In Dwarka Nath v. Income Tax
Officer, Special Circle, D-Ward, Kanpur and Anr., reported in AIR
1966 SC 81, the Apex Court held that the powers of the High Court
under Article 226 of the Constitution of India are not confined to issuing
prerogative writs in a narrow sense, but are intended to enable the
court to mould relief so as to meet the peculiar and complicated
requirements of each case. In the present case, the rejection of the
petitioner’s claim by the Secretary, DLSA, Dhubri, on grounds contrary
to the settled legal position under Section 357A Cr.P.C., has resulted in a
manifest failure of justice. The petitioner, being a victim within the
meaning of law and otherwise entitled under the statutory scheme,
cannot be denied compensation on untenable grounds such as absence
of recommendation by the trial court or delay in approaching the
authority. In such circumstances, this Court would be justified in
exercising its writ jurisdiction not only to set aside the impugned orders
but also to grant consequential relief so as to undo the injustice caused
and to ensure that the statutory entitlement of the petitioner is
meaningfully effectuated.
Page No.# 29/29
17. Accordingly, the impugned orders passed by the Secretary, DLSA,
Dhubri are liable to be set aside as being contrary to the statutory
framework and binding precedents. It is also not in dispute that under
the Assam Victim Compensation Scheme, 2012 (as amended),
compensation of Rs. 5,00,000/- is prescribed in cases of death. The
petitioner, being the widow of the deceased, is entitled to the said
amount.
18. Resultantly, the writ petition stands allowed. The impugned
orders dated 03.05.2019 and 19.11.2020 are set aside and quashed.
The respondent authorities are directed to release compensation of Rs.
5,00,000/- to the petitioner in accordance with the scheme, within a
reasonable period.
19. Before parting, this Court deems it appropriate to place on
record its appreciation for the assistance rendered by Ms. R. S.
Chowdhury, learned Standing Counsel, ASLSA, and Ms. M. Barman,
learned Government Advocate, whose able submissions and assistance
on the legal issues concerning victim compensation under Section
357A of the Code of Criminal Procedure were of considerable value to
the Court.
JUDGE
Comparing Assistant
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