A DISSERTATION

ON
STATE LIABILITY AND
COMPENSATORY JURISPRUDENCE - AN
ANALYTICAL STUDY

Submitted to Utkal University

for Partial Fulfilment of the
Requirement for the Award of
Degree of Master of Law (2nd Sem.) 2019

Under the Guidance of

Submitted by
Prof. SATYANARAYAN MALLICK,
SUDIPTA KANUNGO
P.G. DEPARTMENT OF LAW,
ROLL NO. 14091C182028
M.S. LAW COLLEGE, CUTTACK REGD. NO. 776/13

Post Graduate Department of Law

MADHUSUDAN LAW COLLEGE
UTKAL UNIVERSITY
CUTTACK-3
 DECLARATION

I do hereby declare that this Dissertation entitled “STATE

LIABILITY AND COMPENSATORY JURISPRUDENCE – AN

ANALYTICAL STUDY” submitted by me to Utkal University for partial

fulfilment of the requirement for award of Master Degree in law is my own

work and is prepared under the guidance of Prof. Satyanarayan Mallick,

Asst. Professor (Stage-II), P.G. Department of Law, M. S. Law College.

Neither this Dissertation nor any part thereof has submitted for

award of any diploma/degree from any other University or Institution or

published elsewhere.

Place: Cuttack (Sudipta Kanungo)

Date: 15th July 2019
Prof. Satyanarayan Mallick
M.A., LL.M., M.Phil., Ph.D. (UGC-NET)
Asst. Prof. (Stage-II), P.G. Dept. of Law,
Madhusudan Law College, Utkal University,
Cuttack-753003

CERTIFICATE

It is my pleasure to certify that Sudipta Kanungo, a student of

LL.M, Semester-II of this College bearing Roll No. 14091C182028 has

completed this Dissertation work entitled “STATE LIABILITY AND

COMPENSATORY JURISPRUDENCE – AN ANALYTICAL STUDY” for

the partial fulfilment of her study to the Degree of Master of Law (LL.M) under

my guidance.

I also certify that while preparing this Dissertation work, she has

consulted a number of books, journals, reports and websites etc., which are

reflected in different chapters of this Dissertation.

I wish her all success in life.

Place:- Cuttack (Prof. SatyaNarayan Mallick)

Date: 15th July 2019
 ACKNOWLEDGEMENT

First of all I would like to thank my Institution, M.S. Law College,

for giving me such a studious atmosphere and for providing me all logistical

supports and a living environment to extremely comfortable work with.

In particular it is difficult to adequately acknowledge the

contribution of Prof. S. N. Mallick, Asst. Professor, LL.M department for

helping me in choosing the subject and explaining me by sacrificing his

valuable time, the real importance of this topic and Prof. S. N. Mallick, my

guide, who with his courtesy, companionship and helpfulness way beyond the

call of duty greatly facilitated the completion of the study.

I am so grateful to all my teachers for giving me their help at the

time of need. I cannot forget to acknowledge the contribution of the Asst.

Librarian and other staffs of the library of M.S. Law College for providing my

support.

Then I want to thank some of my seniors who have helped me a

lot. Last but not the least, I like to thank all my friends and classmates and

family members for their cooperation and moral support.

Place- Cuttack (Sudipta Kanungo)

Date:- 15th July 2019
Sr No. TABLE OF CASES Pg No
1 Babu Raghunath Naik v. Mrs. T. P. Fauna AIR 1967 Goa 95 : 69
1967 Cri LJ 1005
2 Basava Kom Dyamgonde Patil v. State of Mysore AIR 1977 SC. 28
3 Bhaskaran v. Balan, 1999(3) KLT 440 (SC). 53
4 Bhim Singh v. State Of Jammu And Kashmir 1985 (2) SCALE 26,40,42
1117.
5 BodhisattwaGautamVs. SubhraChakraborty, (1996) 1 62,70
6 C. Ganga VsLakshmiAmmal and Anr, 2008,Cri.L.J., 3359 53
7 C. Ramakonda Reddy v. State of Andhra Pradesh A.I.R. 1989 72
Anghra Pardesh 235.
8 Chairman, Railway Board v. Chandrima Das A.I.R. 2000 S.C. 28,71,79
465
9 Common Cause, A Registered Society v. Union of India1996(4) 27
SCC 33
10 D. K. Basu vs. State of West Bengal (1997) 1 sec 416; 1997 SCC 43
92; AIR 1997 SC 610.
11 Delhi Domestic Working Women's Forum.Vs. U.O.I. (1995) 1 62,64,70,77
SCC 14.
12 Dudalure M.J. Cherian v. Union of India1995 SCC (Cri) 925 70
13 Guruswamy Vs. Satateof Tamil Nadu, (1979) 3 SCC 797 64,74
14 Hari Krishnan Case and the State of Haryana v. Sukbir Singh 66,68
and others, AIR 1988 SC 2127
15 Hari Singh Vs Suhbir Singh and Ors.,MANU/SC 1988. 63
16 Kasturi Lal v. State of U.P AIR 1995 SC 1039. 24
17 Khatri(II) v. State of Bihar (1981) 1 SCC 627 26,38,40
18 M.C. Mehta vs. Union of India AIR 1987 SC 1086 42
19 Mangilal v. State of Madhya Pradesh 2004Cri LJ 880; AIR 2004 69
SC1280
20 Manjappav. State of Karnataka, 2007 SCCL COM 599 67
21 Meja Singh Vs. SHO Police Station, Zira 1991, Ace C.J. 66
439(Punj&Har).
22 Mukumda Martand Chatnis v. Madhuri AIR 1992 SC 1804 70
23 Mumbai Kamgar Sabha vs. Abdul Bhai AIR 1976 SC 1465 35
24 N. Nagendra Rao v. State of A.P. AIR 1994 SC 2663 27
25 Nanak Singh v. State of Punjab. 1983 Cri LJ 232 (P&H) 60
26 Nand Ballabh Pant v. State (Union Territory of Delhi) AIR 1977 68
SC 892 : 1977 Cri LJ 549
27 Nand Kumar Vs. Jananatli Laxman Kushalkar, (1998) 2 SCC355 56
28 Nilabati Behera vs. State of Orissa AIR J993SC 1960 41,74
29 Nobin Chandra Dey v. Secretary of State for India I.L.R. 1 22
Cal. 11.
30 Palaniappa GounderVs. State of Tamil Nadu(1977) 2 SCC 634 61,68
31 Peninsular and Oriental Steam Navigation Company v. 21
Secretary of State for India (1861) 5 Bom. H.C.R. App. I,
32 People Union for Democratic Right vs. Union of India AIR 34
1982 SC 1473
33 People's Union for Democratic Rights vs. Police Commissioner, 42
Delhi (1989)4 s e c 730
34 Prabhu Prasad Sah v. State of Bihar AIR 1977 SC 704: See also 68
 Sukhdeo Singh v. State of Punjab, 1982 SCC (Cri) 467.
35 R. Gandhi v. Union of India A.I.R 1989 Madras 205 72
36 Rachhpal Singh v. State of Punjab, 2002 Cri. L.J. 3540 S.C. 65
37 Rajeswari Prasad v. R. B. Gupta. AIR 1961 Pat 19. 60
38 Rattan Kumar v. Ranjit Singh AIR 1983 P & H 160 68
39 Rudal Shah v. State of Bihar (1983) 4 SCC 141 26,39,40,42
40 Rupaldeo Bajaj v K.P.S. Gill (1995) 6 SCC 194 70
41 S.P. Gupta vs. Union of India1981 Supp. s e c 87, AIR 1982 SC 33
149.
42 Saheli, A Women’s Resources v. Commissioner Of Police 1990 26,41,42,74
AIR 513
43 Sarwan Singh Vs. State of Punjab AI.R. 1978 S.C. 1525 61,64,74
44 Satyawati Devi v. Union of India A.I.R 1967 Delhi 98. 25
45 Sebastian Hongary vs. Union of India AIR 1984 SC 1026 40,42
46 Secretary of State v. Hari Bhanji (1882) ILR 5 Mad. 273. 23
47 Sri Lakshmi Agencies v. Government of Andhra Pradesh 72
48 State of Gujarat and Anr.Vs. :Hon 'ble High Court of Gujarat 11,65
AIR 1998 SC 3164.
49 State of Gujarat v. Haji Memon A.I.R. 1967 S.C. 28
50 State of Gujarat Vs. Shantilal, AIR 1969 SC 634. 2
51 State of M.P. v. Chironji Lal AIR 1981 M.P. 65. 24
52 State of Maharashtra and Others vs. Ravikant S. Patil (1991) 2 s 41,42
e c 373
53 State of Rajasthan v. Vidyawati AIR 1962 SC 933. 23
54 T. Bassappa vss. T. Naggappa AIR 1954 SC 440. 30
55 Union of India v. Sugrabai A.I.R 1969 Bom 13 25
56 Uttrakhand Sanghrash Samiti, Mussorie v. State of Uttar Pradesh 70
and others [(1996)UPLBEC 461]AUHC
57 Kunhimon v. State of Kerala 1988 CrLJ 493 76
 CONTENTS

CHAPTER-I 1 - 15
Introduction
Meaning of Compensation
History of Compensatory Jurisprudence
Position in other Countries
 United Kingdom
 United States of America
Theories of Compensation
Objective of study
Literature Review
Hypothesis
Research Methodology
Tools of Research
Scheme of study

CHAPTER-II 16 - 45
State Liability and Compensatory Jurisprudence
 Under International Law
 Under Law of Tort
 Under Law of Tort Under Indian Constitution
 The Rationale behind Establishing
State Liability

CHAPTER-III 46 – 50
Law Commission Reports and Recommendations
 42nd Report of Law Commission, 1971
 156th Report of Law Commission, 1997
 226th Report of Law Commission, 2009
 Malimath Committee Report , 2003
CHAPTER-IV 51- 60
Legislative Provisions regarding Compensation
 Power of Court to Pay Compensation on Conviction
 Compensation to the Persons Groundlessly Arrested
 Order to Pay Costs in Non-Cognizable Cases
 Compensation for accusation without reasonable cause
 Recent Amendment in Cr P C
 Compensation Under Probation of Offenders Act, 1958

CHAPTER-V 61 -81
Judicial Response towards payment of compensation
 Compensation and Women victims
 Compensation for Riot Victims and Restitution:
 Compensation for Death in Jail
 Broader Principles for Payment of Compensation

CONCLUSION AND SUGGESTION 81 –83

BIBLIOGRAPHY
 CHAPTER - I

INTRODUCTION
Crime is seen as cancer of society which is steadily increasing. It has been
observed that the administration of criminal justice remained generally unsatisfactory from
the point of view of the victims of crime. The basic object of the Criminal Justice is to protect
the society against crime and to punish the offender. However, Criminal Justice System does
not show equal concern to the victims of crime, who have suffered loss or injury. The
satisfaction the victims get from justice is the punishment inflicted upon the criminal. The
tendency of modern criminologists is to stress on the reform, rehabilitation and legal aid of
the accused. The object of the punishment is not merely to shelter and reform the criminals
but there is need for safeguarding the interests of the victims also.
To maintain the law and order in the society, the civilized state does not allow
a victim to take the law in his hands either to punish the wrongdoer or re-compensate the loss
suffered or injury sustained. Traditionally, Criminal Administration of Justice assumes that
the claim of the victim is sufficiently satisfied by the conviction and the sentence of the
offenders.
However, in the present scenario this traditional thinking seems to be unjust,
unfair and inequitable when society and state are resorting to every possible measure for
correction and rehabilitation of the offender and on the other side not displaying equal
concern for compensating victims of crime. While the principles of retribution and retaliation
as an approach to punishment of criminals cannot be accepted in today’s criminal law
jurisprudence, the injury and suffering caused to the victims should also not be neglected
Compensatory jurisprudence as new part of criminal law is fast developing as it serves two
purposes, firstly, a victim is not lost sight of in the criminal justice system and secondly, an
accused convicted is made to realize that he has a duty towards those injured by his actions.
Currently, movement is growing in several countries, including our own, to
re- examine the problem of compensation or restitution to the victim. Realizing that the
offender is in no position to pay the indemnity for his act, criminal lawyers, criminologists
and social workers, are contemplating the possibility of the State making compensation to the
victim.
MEANING OF COMPENSATION
Literally, compensation means the money which is given to compensate for
loss or injury, whole purpose of compensation is to make good the losses sustained by the
victim of crime or by the legal representative of the deceased or who has suffered pecuniary
loss or non-pecuniary loss. The word compensation in another sense means a thing that
compensates or is given to compensate (for); a counterbalancing loss or injury, or for
requisitioned property. When we talk about Compensation to the victims, it means something
given in recompense i.e. equivalent rendered. It is to be noted that the whole purpose of
compensation is to make good the loss sustained by the victim or legal representative of
the deceased.
Generally when we talk about compensation in the present context it only
limits itself to monetary compensation which is calculated on the basis of two head i.e.
pecuniary loss and non-pecuniary loss. Compensation, in criminal-victim relationships,
concerns the counter balancing the victim's loss that results from the criminal attack. It means
making amends to him; or, perhaps it is simply compensation for the damage or injury caused
by a crime against him. As commonly understood it carries with it, the idea of making whole,
or giving an equivalent, to one party and has no relation to any advantage to the other.1 It is
counter balancing of the victim's sufferings and loss those results from victimization. It is a
sign of responsibility a non-criminal purpose and end2.
According to Oxford dictionary,3 "Compensation means to provide something
good to balance or reduce the bad effect of damage, loss, injury etc".
According to Black's Law Dictionary4, "Compensation means payment of
damages or any other act that court orders to be done by a person who has caused injury to
another and must therefore make the other whole."
Our Supreme Court held in Shantilal case 5 that the compensation is anything
given to make things equivalent, a thing given to make amends for loss, recompense,
remuneration or pay.
Therefore compensation means an act the court which orders to be done or
money which a court orders to be paid, by a person whose acts or omissions has caused loss
or injury to another in order that there by the person damnified may receive equal value for
his loss or be made whole in respect of his injury.

1
Sammaiah Mundrathi, 'Law on Compensation- To Victim . of Crime and Abuse of Power'.
2
V.V. Devasia & LeelammaDevasis, 'Criminology Victimology & Correction' Ashish Publishing House, 1992, p.97
3
Oxford Advanced Learner's Dictionary, 5th Ed, 1996, Oxford University Press.
4
Black's Law Dictionary, 7th Ed., St. Paul, Minn., 1999.
5
State of Gujarat Vs. Shantilal, AIR 1969 SC 634.
 HISTORY OF COMPENSATIONATORY
JURISPRUDENCE
In the evolution of criminal jurisprudence, the concept of compensation of the
victim of the wrong occupied a major place in most legal systems. In early law 6, an injured
person or the relatives of one killed could exact similar vengeance from the wrong doer and
his kin that no more was sought than was justly due. Later it was accepted that blood money7
could be paid in lieu of pursuing the blood-feud, though the injured person or the relative was
allowed by law the option of taking money or taking blood for certain offences.
The principle of compensation for victims of crime occupied a prominent
place in mosaic law and the Penal Codes of ancient Greece and Rome. In the Penal Code of
Solon (Athens) a thief had to forfeit twice the value of the articles stolen to the victims as
well as to the public treasury. The Roman Law specified progressive rise in compensation
payable depending upon the stage of nature of the crime. Apart from theft, assault, libel and
trespass were other offences in which compensation was payable.
The principle of compensation reached the high water mark of development in
England in the Anglo Saxon period. The 'Anglor-Saxons"8 first systematically used
monetary payments in the form of damages or compensation to the victim of wrongs. In
Anglo Saxon England the criminal had to make compensatory payments, the Wer or Bot to
the victim or his relative and the writ to the King or the Feudal Lord. The money value set on
a man according to his rank was 'wer' and the compensation 'wergild' or 'bot'. In addition
there was wite , a penal fine payable to the King or other public authority as a penalty for
having broken the King's peace.
Towards the end of the middle ages, however the institution of compensation
began to lose its force, due to the simultaneous growth of Royal and Ecclesiastical power
which had a sharp distinction between torts and crimes. The concept of compensation was
closely related to that of punishment and it was merged to some extent in the Penal Law, but
at the same time, a number of offences like murder, robbery and rape were no longer
regarded as torts which could be settled by compensation, but were regarded as crimes
against society and were punishable as such. Gradually, as the State monopolised the
institutions of punishment, the rights of the injured were separated from the Penal Law and
the obligations to pay damages or compensation became a part of the Civil Procedure.

6
David M. Walker,Tthe Oxford Companion to Law (1980), p. 138; See also Pollock and F. Maitland,
The History of English Law (1898).
7
David M. Walker, The Companion to Law (1980), p. 138
8
Hugh D: Barlow, Introduction to Criminology (1970), p. 453. See also H. Chadwick, Studies on
Anglo-Saxon Institutions (1905)
 The demand for compensation for the victims of crimes was revived during
the Penal reforms movement of the 19th Century. Some penal philosophers strongly
advocated for compensation and restitution to the victim. Among those were Bonneville,
Lombrose , and Garofalo. Bonneville was a strong voice in the field of penal reforms who
stressed on "public responsibility" to the victim. Lombroso9 supported the idea of victim
compensation and recommended that the victim of a crime should be properly compensated
for injury. This would not only be an ideal punishment but would benefit the victim as well,
he thought. He recognised the difficulties in administering such a proposal, but his idea was
that "the victim should be legally entitled to receive a part of the proceeds from work done by
culprit during detention". Garofalo10 supported the idea of "enforced reparation". He thought,
the damages are to be assessed in sufficient amount not only adequate for complete
indemnification of the injured party but to cover the expenses incurred by the state as a result
of the offender’s dereliction. If the offender’s means are inadequate his labour must be
devoted to the required reparation. At the First Congress of Criminal Anthropology in Rome
(1885), a resolution was passed which essentially followed the suggestion of Garofalo. The
Third International Juridical Congress at Florence (1891) also recommended the institution of
a "Compensation Fund".
The issue was discussed at fifth International Prison Congress in the later half
of the century.
Despite the strong advocacy of Jeremy Bentham and a number of leading
penologists, the acceptance of the principle of the state liability to pay compensation to the
victims of crime remained a distant dream11.
Some western countries such as New Zealand (1963), Great Britain (1964),
and U.S.A. (California, 1965) introduced a type of state sponsored compensation programme
in their criminal justice system at least for crimes of personal violence.12 In the following
sections of the unit we will see how in present times the administration of criminal justice has
been reoriented so that it can also be of some benefit to the victim who has suffered at the
hand of the criminal.

9 "Cesare Lombroso" in Mannheim, Pioneers, p.279

10 "Raffaele Garoofalo" in Manneheim, Pioneers, p.331. The views of Bentham on 'Pecuniary satisfaction' also provide an
interesting comparison (Bentham, Theory of Legislation, 1971, p.282).
11 Bajpai, Kausal Kishore, “The History of Compensation of the victims of crime” 2006 Cri. L.J.26 (Jr)
12 See Singh, S.C. “Compensation and Restitution to the Victims of Crime” 1992 Cri.L.J. 100 (Jr)
 POSITION IN OTHER COUNTRIES
IN UNITED KINGDOM:
In' England, a white paper presented in the Parliament in 1959 suggested,
"Society has concentrated so much on the rehabilitation of the offender that it has lost sight of
the equally important concern for the victim's welfare, i.e., the reformation policy is offender-
oriented and not victim-oriented. It is necessary that victim's loss and offender's ability to pay
should be assessed.13" The plight of victims received recognition from the both council of
Europe in its 1983 Convention14 and its guidelines.
Before this, criminal injuries compensation scheme was introduced for the
first time in England in 1964 and from1970s onward, legislation provisions were made for
court ordered compensation15. 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 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
review16.In 1988 the State compensation was formalized in legislation called the "Criminal
Justice Act." But still, under this act the victims have no rights to claim the' compensation
and payment of compensation is at the discretion of the 'Criminal Injuries Compensation
Board' (CICB). For claiming the compensation, it is most important that victim should be
adjudged as 'innocent' and he is not at fault for injuries he suffered. Therefore this scheme has
limited application.

13
Ram Ahuja, 'Criminology'. Rawat Publications, Jaipur &New Delhi, 2000,
14
Council on Europe, "Convention on State Compensation for Victims of violent crime" 1983
15
Criminology' Chris Hale, Keith Hayward, Emma Wincup (ed), Oxford University Press (2005)
16
Oxford Handbook of Criminology’ (1994 Ed.)
 The 1991 Criminal Justice Act contains a number of provisions which directly
or indirectly encourages an even greater role for compensation. In 1990 in the United
Kingdom the Victim's Charter was published which largely set out, in general terms, the
existing arrangements for victims. It includes under most of the heads covered by the
international documents, but interestingly it omits any mention of informal dispute resolution.
The Charter's main limiting factor is that there is no means of enforcement so that it does not
give victims any right, but it does represent official recognition of the interests of victims and
provides victims organizations with a powerful tool to lobby in the Parliament.17
Besides charter there are many non government organizations which are
playing a vital role in up liftmen of victims' plight. Under Victim's Charter, the provisions are
made for the Criminal Injuries Compensation Authority (CICA) arid the Criminal Injuries
Compensation Appeals Panel t CICAP). The obligations of CICA are that it must process all
applications for compensation made under the Criminal Injuries Compensation Scheme ("the
Scheme") in accordance with the rules of the Scheme. It must make available clear
information on eligibility for compensation under the Scheme. It must respond to all
correspondence regarding applications for compensation under the Scheme which requires a
reply, no later than 20 working days after the day the correspondence was received by CICA.
In the event of a claim for compensation under the Scheme being refused or reduced, it must
ensure that it gives explanations 'for its decisions to the applicant. If CICA is unable to send a
decision letter to an applicant for compensation under the Scheme within 12 months of
receipt of the application, it must notify the applicant of the status of their claim after 12
months of receipt of the application. When issuing its decision, It must notify applicants of
their right to a review of the decision, and provide information on the procedure and the time
limit for applying for review. Where an applicant requests a review, CICA must process the
review efficiently, fairly, and entirely afresh on the basis of all available information. It must
provide explanations of the review decision to the applicant, and must notify them of the
process of applying for an independent appeal to the Criminal Injuries Compensation.
The administrative staff of the Criminal Injuries Compensation Appeal Panel
(CICAP) has obligations that it must make available to claimants relevant information
regarding the procedure for appeals by producing and keeping up to date guidance materials.
They must respond to all correspondence relating to appeal cases under the Scheme which
needs a reply, no later than 20 working days after the day the correspondence was received
by CICAP and they must ensure explanations for appeal decisions under the Scheme are
available to applicants.

17
Katherine S. Williams, 'Textbook on Criminology' Universal Law Publishing, 2001,Cited in
Victims, Victimisations and Victimology,
IN UNITED STATES OF AMERICA:
In U.S.A the compensation are being provided to the victims under both
Federal and as well as under States laws. Many of the earlier penal codes in the United States
included restitution provisions and in 1913 the Supreme Court of United States, in Bradford
18
Vs. United States, sectioned the restitution as a condition of pardon. By providing for
restitution in the penal sections of the state codes and authorizing it as a sentencing option in
addition to fines or imprisonment or as a condition on parole or probation, today legislatures
have preserved restitution as a criminal penalty.19
Federal Governments have passed many laws to provide the rights to the
victims particularly right of restitution and compensation. There are major " enactments and
to name a few among them are Victims of Crime Act of 1984 (VOCA), Victims' Rights and
Restitution Act of 1990, The Mandatory Victims Restitution Act of 1996 and The Attorney
General Guidelines for Victim and Witness Assistance 1995 etc. Besides these Federal
enactments, the different States in U.S.A have also enacted their own laws to provide
compensation and restitution to victims of crime.
The court may order a defendant to pay a crime victim for costs relating to
physical injuries, mental health, counseling, lost wages, property lost or damaged or other
related costs. The restitution is important because it "forces the defendant to confront, in
concrete terms, harm his or her actions have caused." 20All states allow the courts to order to
give restitution to the victims at different stages of trial. More than one third states require to
order restitution, unless there are extraordinary or compelling circumstances why it should
not be ordered. Out of 32 states which have provided the victims' rights, 18 states amended
their constitutions to provide the right of restitution to victims.
The defendant's assets, earning capacity, and other financial obligations are
considered when payment schedule is set.
The first compensation program was created in 1965, and nine states were
operating such programs by 1972, when the earliest programs providing other types of victim
assistance were established. Today, compensation programs across the country are paying out
close to $265 million annually to more than 115,000 victims. Fittingly, most of this money
comes from offenders, since a large majority of states fund their programs entirely through
fees and fines charged against those convicted of crime, rather than tax dollars. Federal grants
to compensation programs, providing close to 25% of the money for payments to victims,
also come solely from offender fines and assessments. Victims of rape, assault, child sexual
18
228 U.S. 446 (1913)
19
Victim Restitution in the Criminal Process: A Procedural Analysis, Harvard Law Review, Vol. 97:931, 1984
20
People V. Moser, 50 Cal. App.4th 130,135 (1996)
abuse, drunk driving, and domestic violence, as well as the families of homicide victims, are
all eligible to apply for financial help. Nationally, close to a third of the recipients of
compensation are children, most of whom are victims of sexual abuse.21
Compensation programs can pay for a wide variety of expenses and losses
related to criminal injury and homicide. Beyond medical care, mental health treatment,
funerals, and lost wages, a number of programs also cover crime-scene cleanup, travel costs
to receive treatment, moving expenses, and the cost of housekeeping and child care. And
states continue to work with victims and advocates to find new ways to help victims with
more of the costs of recovery. Telling victims about compensation is the responsibility of
every individual who works in victim services and law enforcement. This resource also
should be made known by those who provide medical and counselling services.
Compensation programs depend largely on these professionals who work with
victims daily to get the message out that financial assistance is available, and programs
typically expend a great deal of time and effort in providing training and information to them.
California established the nation's first compensation program in 1965, and five other states
created programs in the next three years. By 1980, 28 states were providing victim
compensation, and a majority of the rest of the states authorized programs during the next
decade.
Currently, all 50 states, plus the District of Columbia, the Virgin Islands and
Puerto Rico, are operating compensation programs. (It's worth noting that a number of
European countries, plus Canada, Australia, New Zealand, and -Iapan also have victim
compensation programs fairly similar to those in the. U.S.) California has the largest program
in the country by far, paying out about a third of the total benefits paid by all programs
combined. (California awards about $75 million annually, while the next largest program,
Texas, pays out nearly $30 million each year.) The median annual payout per state is about
$2 million (half the states pay a total less than that, and half pay more), but the range is
considerable, with nine of the smallest states paying less than $500,000 annually, and 13
states paying more than $5 million. Staff sizes tend to be quite small, with 36 states operating
with less than 10 people, and half of those employing five or less. Only a few states operate
with more than 20 employees, California again being the largest, with over 400 workers.
The programs function within a variety of governmental settings. Nearly one
third are affiliated with departments of public safety or criminal justice planning, and another
fifth function within offices of attorneys general. Eight are independent agencies; workers'
compensation bureaus house four of the programs; and other affiliations include corrections

21
Crime Victim Compensation an Overview, U.S.A., www.usa.crimrevictimcom.com
departments, social services agencies, and finance and management departments. Five states
operate their programs within courts or claims courts. Colorado and Arizona are unique in
operating compensation programs through local prosecutors' offices. Twenty-two
compensation boards in Colorado (one for each district) and 15 boards in Arizona (one in
each county) adjudicate claims under state law and coordination.22

THEORIES OF COMPENSATION
During the past three decades, several justifications were made for initiating
literature in the west. Sometimes they are contradictory as, for instance, when victimologists
argue that the victim of the offence of rape contributes the aggravation of the offence. When
she resists, such resistance is likely to make the offender, more violent, and that if she does
not resist, she contributes to the offence by being a willing victim (as most of our lawyers
argue), and she is an accessory to them crime. These rationales are generally reflected in the
state's victim compensation statutes and may serve as justification for the adoptions of
specific programme procedures and daily operations. However, knowledge of the various and
contradictory justifications for victim compensation may at least help explain the
development of certain provisions in compensation statutes and particular procedures adopted
by victim compensation administrators.

THEORY OF STATE:
The best raison d’être for victim compensation in the theory of the state.
Modern state has assumed the role of 'Parenspatriae' (Parent of the Country) hence duty of
the state to maintain law and order in the society. The state achieves its purpose through
enactment and promulgation of laws and it enforces obedience to the laws by the exercise of
power.
Power is the capacity to produce intended effect, if the intended effect cannot
be produced in respect of any law, the state has to assume responsibility for the loss, pain, or
damage caused to any law abiding citizen by someone's disobedience of the law. The
assumption of power by the state means the automatic deprivation of the citizen of his right to
private vengeance or personal retributive action. Such deprivation is a sine qua non of
modern society's civilized existence. But for that, we would be reverting to the law of the
jungle. In return for the deprivation the citizen gets the protection of the state. In return for

22
Ibid,
that deprivation the citizen gets the protection of the state. In cases in which the state fails in
its obligation to protect the individual it has broken its agreement, and should be liable or the
damages done to the victim of crime. Such a rationale will argue for the most liberal type of
compensation programme, as all citizens, regardless of income or degree of type of loss, in
principle have equal right to place a claim against the state for its failure to protect him/her23.

WELFARE THEORY:
Another functional justification for victim compensation is the welfare theory
arising from the assumption that the government exists and functions for the people. This
approach holds that, just as the state has' a humanitarian duty to the poor, the sick, the
unemployed, the underprivileged, the disabled veteran, and so on, it has a duty towards the
victims of crime also. However, this duty is based not on any contractual obligation on the
part of the state, but on the social conscience of its rulers and its citizenry. Hardly any state
victim compensation legislation admits of this orientation; yet, such provisions as financial
need requirements or minimum loss requirements are clearly based on the theory of welfare
state24.

THE MERCY OF GOVERNMENT THEORY:

Related to the welfare theory is the mercy of the government theory. Under
this rationale, it is argued that the state has the power to "deal mercifully with certain
individuals". Thus, it may, by legislative grace, grant compensation to individuals who have
been unfortunate to become victims of specified criminal incidents. The mercy of the
government theory is less general and inclusive than the social welfare theory25.

SHARED RISK THEORY:

Yet another justification offered for victim compensation is the shared risk
argument. In a sense, the government may be viewed as an entrepreneur of an employer who
includes the cost of the risk service he renders to the consumer in the price of the product.
Thus, each consumer contributes towards the payments made to those few individuals who
will be compensated for damages, the taxes paid by the citizens are seen as payment of
premium to cover the insurance against the risk of crime victimization which every citizen

23
V. N. Rajan, 'Victimology in India-Perspectives Beyond Frontiers' Ashish Publishing
House, New Delhi, 1995, pp. 7-8
24
Ibid
25
Ibid
shares with every other citizen and compensation to crime victims as the payment given to
any unfortunate, injured individual or deceased individual's next-of-kin under the 'insurance'
scheme.26

RESTORATIVE AND REPARATIVE THEORIES:

These are not theories of punishment. Rather, their argument is that sentences
should move away from punishment of the offender towards restitution and reparation, aimed
at restoring- the harm done and calculated accordingly. Restorative theories are therefore
victim - centered (see e.g. Wright 1991), although in some versions they encompass the
notion' of reparation to the community for the effects of crime. They envisage less resort to
custody, with onerous community-based sanctions requiring offenders to work in order to
compensate victims and also contemplating support and counselling for offenders to
reintegrate them into the community.
Such theories therefore tend to act on a behavorial premise similar to
rehabilitation, but their political premise is that -compensation for victims should be
recognized as more important than notions of just punishment on behalf of the State. Legal
systems based on a restorative rationale are rare, but the increasing tendency to insert victim
orientated measures such as compensation orders into sentencing systems structured to
impose punishment provides a fine example of Garland's observation that institutions are the
scenes of particular conflicts as well as. being means to a variety of ends, so it is no surprise
to find that each particular institution combines a number of often incompatible objectives,
and organizes the relations of often antagonistic interest groups.27

OBJECTIVES OF STUDY
The objectives of the present study are as follows
1. Trace the history of compensatory jurisprudence
2. Study about compensatory provisions under International law, Indian
Constitution and Law of Tort
3. Understand the need and object of compensation to the victims
4. Study the law commission reports and recommendations towards
compensation
26Ibid
27State of Gujarat and Anr.Vs. :Hon 'ble High Court of Gujarat AIR 1998 SC 3164. "Oxford Handbook of Criminology",
Andrew Ashworth, Prof of Oxford University center for Criminological Research has contributed
 5. Examine and evaluate existing laws governing compensation to the victim
6. Understand role played by judiciary in granting compensation to the
victims
7. Identify the future of compensatory jurisprudence in India

LITERATURE REVIEW
A constitutional solution to fill the gap in the legal right to compensation in
the monetary way for the abuse of the many human rights has been found by the apex courts.
The apex court in the case Rudal Sah v. State of Bihar for the first time laid down the
principle that compensation can be given in the cases where any fundamental right of an
individual has been injured and that the offer codes have the authority to do so "through the
exercise of writ jurisdiction and evolved the principle of compensatory justice in the annals of
human rights jurisprudence."
We can clearly see that monetary compensation had been made in cases where
an individual's legal rights have been damaged. Even though there is not a statute defining
such a claim, the courts have exercised this power wherever they deemed fit. If a person's
fundamental right is violated or where a writ petition is not generated by the court itself, the
said person's right to compensation comes into effect and he should be compensated
adequately in such cases.
In Sebastain v. Union of India, "on account of failure of government to
produce in habeas corpus petition fields by wives, apex court awarded cost of 1 lakh rupees
to be given to wife of each of detenue."
The theory of compensation in criminal law is mainly about compensation to
the victim of a crime. A victim to a crime is one has suffered any loss because of some act or
omission of the accused. The victim not only suffers physical injuries but also psychological
and financial hardships too. The plight of the victim is only made worse by lengthy hearings
and tedious proceedings of courts and improper conduct of the police. The victim is literally
traumatised again in the process of seeking justice for the first injury. The legal
heirs/gaurdians of the victim too come in the same definition.
The law makers made provisions in the Criminal Procedure Code, 1973 under
section 357 clause 3 to enable the codes to award any amount of compensation to the victims
of crime. This was depicted in the landmark case of Hari Kishan where the Supreme Court
had awarded compensation as punishment of 50000 rupees. not only this codes were asked
and advised to "exercise the power of awarding compensation to the victims of offences in
such a liberal way that the victims may not have to rush to the civil courts."
HYPOTHESIS
1. Proposals to compensate the victims of criminal violence have received
increased attention with the growth of the welfare state. However there is
no unanimity on the theories of compensation. There are two main
protagonists who have given opposite views regarding compensating the
victims. Proponents (Stephen Schafer) of victim compensation argue that
when the state is unable to or fails to full fill its basic responsibility of
providing safety and security to its people the state is morally responsible for
the violence inflicted. If the state, they reason, gains taxes from the sale of
alcohol, it is obligated to provide the facilities for the alcoholic; if the
government has pre empted the right of individuals to seek reparations or
compensation, they argue, it must also assume responsibility for the victim.
2. Punishment through incarceration serves no one: the offender is not
rehabilitated, the taxpayer is burdened with the increased prison costs, and
victim is forced to bear his burden alone. Wolfgang also supports state
sponsored compensation. According to him, since the state has power and
right to punishment and rehabilitation of criminals, it should also take up the
responsibility of looking after the victim. 26On the another hand, opponents of
compensation, view state sponsored reparation plans as infringements of
insurance company prerogatives, forms of socialist conspiracy, attempts to
create groups dependent upon government, and political boondoggles.
3. Critics who accuse the courts of failing to remember the "right of the victim"
usually seek punishment of the offender rather than any momentary or social
aid which can significantly assist the victim or his family. The wealth of the
offender largely determines whether the victim will receive any compensation.
Since the typical violator posses the limited property or insurance, the victim
shares the costs of the illegal act beyond his control. Law Professor Gerhard
O.W. Mueller sees victim compensation programs as planned attempts to dole
tax money to the "good guys" (victims) and to care for the "bad guys"
(offenders) in penal institutions. A government plan to reimburse victims of
crime, he reasons, may increase rather than decrease physical violence. But a
more advantageous system of probation and a greater allowance for prisoner's
 employment would permit the violator to use his wages to ease the burden of
his victim. 28

RESEARCH METHODOLOGY
The Method of Study is Doctrinal and Non-Doctrinal type of Research. The
doctrinal method is used by the researcher to analyse the legal proposition and to verify the
hypothesis by a firsthand study of source. The non-doctrinal method is use by the researcher
to conduct the survey by personal interviews of the judges, advocates and academicians and
also distributed the questionnaire and collected the responses from the respondents. The
method helps the researcher in gaining the thorough knowledge of the concept.

TOOLS OF RESEARCH
The researcher has gone through various Laws, Books, E-Books, Law
journals, E-Law journals etc.
1. The Primary Source
A. The Constitution of India
B. Law of Torts
C. Law of Crimes
D. Judicial Pronouncements of the Supreme Court and High Court

2. The Secondary Source

A. Interviews of Judges, Advocates, Academicians
B. Distribution of Questionnaires to the Respondents and their responses
C. Websites

SCHEME OF STUDIES

CHAPTER I
The first chapter deals with introduction, meaning and the concept of term
compensation. It also contains the historical evolution of the term compensation and its
position in various countries i.e USA and UK. The researcher has also studied the various

28
'Criminal Controversies', Richard D. Knudten (ed), Meredith Corporation, New York
dictionary meaning of the term compensation and the meaning defined by the academicians,
authors and judges of the higher judiciary.

CHAPTER II
The second chapter deals with state liability and compensatory
jurisprudence under international law, law of tort and constitution of India. This chapter
also enumerates about the position of compensation in Indian justice system before and
after independence with reference to case laws. The interpretation of the term Sovereign
and Non sovereign dichotomy by Indian superior courts are also placed in this chapter by
the researcher. The rationality behind state liability is also analysed briefly in this chapter.

CHAPTER III
The third chapter titled as reports and recommendations of law commission
on compensation. The victims are always placed in a higher position by the criminal justice
system. In time to time the law commission recommended changes in law and for giving full
justice to the victims. It also throws light on some important committee report which brings
major changes in the law of compensation.

CHAPTER IV
The forth chapter deals with all the legislative provision regarding
compensation. It also analyses various provisions of Indian Penal Code, Criminal
Procedure Code, Probation of offender’s Act etc. It categorically discusses about all the
provisions of CrPC which carries provisions about compensation.

CHAPTER V
The fifth chapter is focused on various judicial decisions regarding
compensation. In this chapter we get to read about how compensation is granted when the
victim is a victim of rape, sexual assault, victim of custodial death, murder, riot victim etc. It
also emphasizes on at the time of imparting compensation how the judiciary thinks with a
broader mind.
Lastly, The Dissertation devoted for the conclusion and suggestions. The
researcher after the completion of research has submitted his conclusion and suggestion.

CHAPTER - II
STATE LIABILITY AND COMPENSATORY
JURISPRUDENCE
In every democratic and welfare State like ours it is the duty of the state to
protect the interests of its citizens. However, it has been observed that the various
Fundamental Rights provided to the citizens under the Constitution' are being violated by
various governmental agencies in exercise of their administrative powers. In some cases, the
Fundamental Rights of the victim which are infringed may be restored, but in each and every
case as well as in every circumstance the restoration may not be possible. In such situations
he is to be compensated in terms of money for the loss suffered by him. The Constitution of
India does not provide any remedy to the victim of Fundamental Right specifically, except in
the form of writs under Articles 32 and 226. The Supreme Court has now taken a liberal view
in such situations to award monetary compensation to the victims.
In case of violation of human rights, Supreme Court departed from the
ordinary civil law where the right to claim compensation is only through a civil suit instituted
by the aggrieved party before the civil court. In view of expansion of writ jurisdiction and
award of compensation in writs, the rule of procedure and evidence have been relaxed. It has
now become an accepted principle that where the Fundamental Rights are in consonance with
human rights, the former must be given functional application rather than to be merely on
papers.

UNDER INTERNATIONAL LAW

 Article 8 of the Universal Declaration on Human Rights, 1948 recognizes the
right to appropriate compensation.
 Article 13 of the European Convention on Human Rights, 1950 provides
the right for an effective remedy before national authorities for violations of
human rights contained therein.
 Article 9 (5) of the international Covenant on Civil and Political Rights, 1966:
‘Anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation.’
 Article 5, Para 5 of the American Convention on Human Rights, 1969: Right
to Compensation which is enforceable by victims of arrest or detention.
 Article 10 of the American Convention on Human Rights, 1969: Right to
Compensation for miscarriage of justice.
  Article 3 of the Protocol No. 7 to the European Convention for the Protection
of Human Rights and Fundamental Freedoms, 1984: Right to Compensation
for wrongful conviction.
 UN Declaration of Basic Principles of Justice for the Victims of Crime &
Abuse of Power, 1985provides for:
1. Access to justice and fair treatment;
2. Restitution;
3. Compensation; and
4. Assistance.
General Assembly of the United Nations on November 11, 1985 adopted the
"UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power".
This was first constructive efforts by the United Nations to provide some substantial rights to
the victims of crime. Compensation and restitution were two very effective tools to assist the
victims of crime. Paragraph 829 provides restitution to victims or to their family by offenders
or third parties responsible for their behavior. 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. In Paragraph
30
12 It is provided that when the compensation is not available from the offender or other
sources then States should endeavor to provide financial compensation to: (a) Victims and (b)
31
The family, particularly dependent. The Paragraph 13 provides for establishment,
strengthening and expansion of national funds for compensation to victims should be
encouraged and also to establish other appropriate funds, 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.
The second landmark efforts are made by the United Nations is to provide the
'Right of Reparation for the Victims of Human Rights Violation '1997.' Under Principle 632
the reparation can be claimed by the victim himself or by the immediate family, dependants
or other persons or groups of persons closely connected with the direct victims for violations

29 Offenders or third parties responsible for their behavior 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
30 When compensation is not fully available from the offender or other sources, States should endeavour to provide financial

compensation to: 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.
31 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 them
32 Reparation may be claimed individually and where appropriate collectively, by the direct victims of violations of human

rights and international humanitarian law, the immediate family, dependents or other persons closely connected with direct
victims.
 33
of human rights and international humanitarian law. Under Principle 7 it is the duty of the
states that they adopt special measures, where necessary, to permit expeditious and, fully
effective reparations in accordance with international law. Reparation shall include
restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
United Nations 'Convention on Justice and Support for Victims of Crime
and Abuse of Power' held on 14 November 2006 also reiterated the right of compensation
and restitution to victims of crimes. The Article 934 makes the provisions for restorative
justice. Accordingly the State Parties shall endeavor to establish or enhance systems of
restorative justice, that seek to represent victims' interests as a priority and emphasize the
need for acceptance by the offender of his or her responsibility for the offence and the
acknowledgement of the adverse consequences of the offence for the victim. Article 10
makes the provisions that States Parties shall legislate to make offenders responsible for
paying fair restitution to victims, their families or dependants in term of 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. States Parties shall
also review their practices, regulations, laws and their constitutions to ensure that restitution
is an available at the sentencing option in criminal cases and in cases of environmental crime.
States Parties shall legislate to include restitution to restore 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. The State
parties shall also legislate to provide restitution to victims from the State whose officials or
agents were responsible for the harm inflicted. The State parties shall also responsible to
enforce the order of court for the restitution. In cases where the victim seeks restitution
through civil remedies, States shall endeavor to expedite these proceedings and minimize
expenses.
35
Under Art.11 the compensation shall be provided to victims who have
sustained significant bodily injury or impairment of physical or mental health as a result of

33 (In accordance with international law,) States have the duty to adopt special measures, where necessary, to permit
expeditious and fully effective reparations. Reparation shall render justice by removing or redressing the consequences of the
wrongful acts and by preventing and deterring violations. Reparations shall be proportionate to the gravity of the violations
and the resulting damage and shall include restitution, compensation, rehabilitation, satisfaction and guarantees of non-
repetition.
34 Restorative justice

(1) States Parties shall endeavor, where appropriate, to establish or enhance systems of restorative justice that seek to
represent victims' interests as a priority. States shall emphasize the need for acceptance by the offender of his or her
responsibility for the offence and the acknowledgement of the adverse consequences of the offence for the victim.
(2) States Parties shall ensure that victims shall have the opportunity to choose or to not choose restorative justice forums
under domestic laws, and if they do decide to choose such forums, these mechanisms must accord with victims' dignity,
compassion and similar rights and services to those described in this Convention
35 Article 11, Compensation

(1) When restitution is not fully available from the offender or other sources, States Parties shall endeavor to provide
compensation to:
intentional violent crime and to the victims' family, in particular dependants of persons who
have died as a result of such victimization. Compensation shall be provided for (a) treatment
and rehabilitation for physical injuries (b) pain and suffering and other psychological injuries
caused to victims. States should also consider compensation for loss of income, funeral
expenses and loss of maintenance for dependants and also encourage the establishment,
strengthening and expansion of national, regional o~ local funds for compensation to victims.
States Parties may consider providing funds through general revenue, special taxes, fines,
private contributions, and other sources. These funds shall guarantee fair, appropriate and
timely compensation with emergency and/or interim payments. Special care should be taken
to make the funds accessible.
Besides these, United Nations has also drafted a 'Handbook on Justice for
Victims' in 1999 for the use and application of the "Declaration of Basic Principles of
Justice for Victims of Crime and Abuse of Power." The .Handbook is designed as a tool
for implementing victim service programmes and for developing victim-sensitive policies,
procedures and protocols for criminal justice agencies and others who come into contact with
victims. The Handbook outlines the basic steps in developing comprehensive assistance
services for victims of crime in terms of compensation and restitution.

(a) victims who have sustained significant bodily injury or impairment of physical or mental health as a result of intentional
violent crime;
(b) the victims' family, in particular dependants of persons who have died as a result t of such victimization. .'
(2) Compensation shall be provided for: (a) treatment and rehabilitation for physical injuries; (b) pain and suffering and
other psychological injuries caused to victims;
(3) States should also consider compensation for loss of income, funeral expenses and loss of maintenance for dependants. ,
(4) The establishment, strengthening and expansion of national, regional or local funds for compensation to victims should
be encouraged. States Parties may consider providing funds through general revenue, special taxes, fines, private
contributions, and other sources.
(5) These funds shall guarantee fair, appropriate and timely compensation. They should also allow for emergency and/or
interim payments. Special care should be taken to make the funds accessible. This requires, inter alia, extensive
dissemination of information on the eligibility criteria and the procedure to be followed. States should also consider other
means to raise public awareness of the existence of these funds.
(6) 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.
(7) In cases of cross border victimization, the State where the crime has occurred should pay compensation to the foreign
national, subject to the principle of reciprocity.
UNDER LAW OF TORT
Tort36 is a civil wrong which results in un-liquidated damages (Damages that
are not predetermined) if one person violates the legal right of the other. The term
‘administration’ is used here synonymously with ‘state’ or ‘Government’. To what extend the
administration would be liable for the torts committed by its servants is a complex problem
especially in developing countries with ever widening State activities. The liability of the
government in tort is governed by the principles of public law inherited from British
Common law and the provisions of the Constitution. The whole idea of Vicariously Liability
of the State for the torts committed by its servants is based on three principles:
 Respondent superior (let the principal be liable).
 Qui facit per se alium facit per se (he who acts through another does it
himself).
 Socialization of Compensation.

POSITION IN ENGLAND:
Under the English Common Law, the maxim was “The King can do no
wrong” and therefore, the King was not liable for the wrongs of its servants. But, in England,
the position of old Common law maxim has been changed by the Crown Proceedings Act,
1947. Earlier, the King could not be sued in tort either for wrong actually authorized by it or
committed by its servants, in the course of employment.
With the increasing functions of State, the Crown Proceedings Act had been
passed, now the crown is liable for a tort committed by its servants just like a private
individual. Similarly, in America, the Federal Torts Claims Act,1946 provides the principles,
which substantially decides the question of liability of State.

POSITION IN INDIA:
Unlike the Crown Proceedings Act, 1947 (England), we do not have any
statutory provisions mentioning the liability of the State in India. The law in India with
respect to the liability of the State for the tortious acts of its servants has become entangled
with the nature and character of the role of the East India Company prior to 1858. It is,
therefore, necessary to trace the course of development of the law on this subject, as
contained in article 300 of the Constitution.

36
TORT: DEFINITION OF TORT IN OXFORD DICTIONARY (BRITISH & WORLD
ENGLISH),http://www.oxforddictionaries.com/definition/english/tort
 The position of State liability as stated in Article 300 of the Constitution is as
under: Clause (1) of Article 300 of the Constitution provides first, that the Government of
India may sue or be sued by the name of the Union of India and the Government of a State
may sue or be sued by the name of the State; secondly, that the Government of India or the
Government of a State may sue or be sued in relation to their respective affairs in the like
cases as the Dominion of India and the corresponding Provinces or the corresponding Indian
States might have sued or be sued, “if this Constitution had not been enacted”, and thirdly,
that the second mentioned rule shall be subject to any provisions which may be made by an
Act of Parliament or of the Legislature of such State, enacted by virtue of powers conferred
by the Constitution.
Consequently, one has to uncover the extent of liability of the East India
Company in order to understand the liability parameters of the administration today because
the liability of the administration today is in direct succession to that of the East India
Company.
The East India Company launched its career in India as a purely commercial
corporation but gradually acquired sovereignty. Therefore, in the beginning, the company did
not enjoy the immunity of the Crown. It was only when it acquired political powers that a
distinction was made between sovereign and non- sovereign functions.

PRE-CONSTITUTIONAL JUDICIAL DECISIONS:

1. Peninsular and Oriental Steam Navigation Company v. Secretary of State
for India 37
A consideration of the pre-Constitution cases of the Government’s liability in
tort begins with the judgment of the Supreme Court of Calcutta in the case P. & O. Steam
Navigation Co. v. Secretary of State. The principle of this case holds that if any action was
done in the exercise of sovereign functions, the East India Company or the State would not be
liable. It drew quite a clear distinction between the sovereign and non-sovereign functions of
the state.
The facts of the case were that a servant of the plaintiff’s company was
travelling from Garden Reach to Calcutta in a carriage driven by a pair of horses. The
accident took place when the coach was passing through the Kidderpore Dockyard which was
Government Dockyard. Some workman employed in the Government, Dockyard were
carrying a heavy piece of iron for the purpose of repairing a steamer. The men carrying the
iron-rod were walking along the middle of the road.

37
(1861) 5 Bom. H.C.R. App. I,p.1.
 When the carriage of the plaintiff drove up nearer the coachman slowed its
speed. The man carrying the iron attempted to get out of the way, those in front tried to go the
one side of the road while those behind tried to go the other side of the road. The
consequence of this was a loss of the time, brought the carriage to close up to them before
they had left the centre of the road. Seeing the horses and carriage they got alarmed and
suddenly dropped the iron and ran away. The iron fell with a great noise resulting in injuries
to one horse, which startled the plaintiff’s horses which thereupon rushed forward violently
and fell on the iron.
The Company filed a suit against the Secretary of State for lndia for the
damages for injury to its horse caused by the negligence of the servants employed by the
Government of India. The Supreme Court of Calcutta by Sir Barnes Peacock C. J. held that
the Secretary of State for India was liable for the damages caused by the negligence of
Government servants because the negligent act was not done in the exercise of a sovereign
function.
The Court drew a distinction between acts done in exercise of “non-sovereign
power” that is, acts done in the conduct of undertakings which might be carried on by private
person-individuals without having such power. The liability could only arise in case of “non-
sovereign functions”. The East lndia Company had a two-fold character –
(a) as a sovereign power and
(b) as a trading company.
The liability of the Company could only extend to in respect of its commercial
dealings and not to the acts done by it in the exercise of delegated sovereign power. In the
present case, the damage was done to the plaintiff in the exercise of a non-sovereign function,
i.e. the maintenance of Dockyard which could be done by any private individual without any
delegation of sovereign power and hence the Government was liable for the torts of the
employees. The Secretary of State was not liable for anything done in the exercise of
sovereign powers.
2. Nobin Chandra Dey v. Secretary of State for India 38
This doctrine of immunity, for acts done in the exercise of sovereign
functions, was applied by the Calcutta High Court in Nobin Chander Dey v. Secretary of
State. The plaintiff, in this case, contended that the Government had made a contract with
him for the issue of a license for the sale of ganja and had committed a breach of the contract.
The High Court held that upon the evidence, no breach of contract had been proved.

38
I.L.R. 1 Cal. 11.
Secondly, even if there was a contract, the act had been done in exercise of sovereign power
and was thus not actionable.
3. Secretary of State v. Hari Bhanji 39
In this case, the Madras High Court held that State immunity was confined to
acts of State. In the P & O Case, the ruling did not go beyond acts of State, while giving
illustrations of situations where the immunity was available. It was defined that Acts of State,
are acts done in the exercise of sovereign power, where the act complained of is professedly
done under the sanction of municipal law, and in the exercise of powers conferred by law.
The mere fact that it is done by the sovereign powers and is not an act which
could possibly be done by a private individual does not oust the jurisdiction of the civil court.
The Madras judgment in Hari Bhanji holds that the Government may not be liable for acts
connected with public safety, even though they are not acts of State.

POST CONSTITUTIONAL JUDICIAL DECISIONS

1. State of Rajasthan v. Vidyawati 40
The respondents filed a suit for the damages made by an employee of a State
and the case questioned whether the State was liable for the tortious act of its servant – The
Court held that the liability of the State in respect of the tortious act by its servant within the
scope of his employment and functioning as such was similar to that of any other employer.
It was held in this case that the State should be as much liable for tort in
respect of tortuous acts committed by its servant within the scope of his employment and
functioning as such, like any other employer.
The facts of this case may shortly be stated as follows. In that case, the claim
for damages was made by the dependants of a person who died in an accident caused by the
negligence of the driver of a jeep maintained by the Government for official use of the
Collector of Udaipur while it was being brought back from the workshop after repairs. The
Rajasthan High Court took the view-that the State was liable, for the State is in no better
position in so far as it supplies cars and keeps drivers for its Civil Service. In the said case the
Hon’ble Supreme Court has held as under:
“Act done in the course of employment but not in connection with sovereign
powers of the State, State like any other employer is vicariously liable.”
In the aforesaid case, the Hon’ble Apex Court while approving the distinction
made in Steam Navigation Co.’s case between the sovereign and non-sovereign function
observed that the immunity of crown in the United Kingdom was based on the old feudalistic

39
(1882) ILR 5 Mad. 273.

40
AIR 1962 SC 933.
notions of Justice, namely, that the King was incapable of doing a wrong. The said common
law immunity never operated in India.
2. Kasturi Lal v. State of U.P.41
The ruling, in this case, was given holding that the act, which gave rise to the
present claim for damages, has been committed by the employee of the respondent during the
course of its employment. Also, that employment belonged to a category of sovereign power.
This removed any liability on the part of the state. In this case, the plaintiff had been arrested
by the police officers on a suspicion of possessing stolen property.
Upon investigation, a large quantity of gold was found and was seized under
the provisions of the Code of Criminal Procedure. Ultimately, he was released, but the gold
was not returned, as the Head Constable in charge of the Malkhana, where the said gold had
been stored, had absconded with the gold. The plaintiff thereupon brought a suit against the
State of UP for the return of the gold or alternatively, for damages for the loss caused to him.
It was found by the courts below, that the concerned police officers had failed to take the
requisite care of the gold seized from the plaintiff, as provided by the UP Police Regulations.
The trial court decreed the suit, but the decree was reversed on appeal by the
High Court. When the matter was taken to the Supreme Court, the court found, on an
appreciation of the relevant evidence, that the police officers were negligent in dealing with
the plaintiff’s property and also, that they had not complied with the provisions of the UP
Police Regulations.
However, the Supreme Court rejected the plaintiff’s claim, on the ground that
“the act of negligence was committed by the police officers while dealing with the property
of Ralia Ram, which they had seized in exercise of their statutory powers. The power to arrest
a person, to search him and to seize property found with him, are powers conferred on the
specified officers by statute and they are powers which can be properly categorized as
sovereign powers. Hence the basis of the judgment in Kasturi Lal was two-fold – The act was
done in the purported exercise of a statutory power. Secondly, the act was done in the
exercise of a sovereign function.
3. State of M.P. v. Chironji Lal 42
A new question came before the court relating to the payment of damages for
the loss caused by the lathi-charge of the police in a situation where it was unauthorized and
unwarranted by law. It was alleged that the police resorted to lathi-charge wilfully and
without any reasonable cause and thus damaged the plaintiff’s property. The claim was

41
AIR 1995 SC 1039.
42
A.I.R 1981 M.P. 65.
rejected on the ground that the function of the state to regulate processions and to maintain
law and order is a sovereign function.
4. Satyawati Devi v. Union of India 43
The Delhi High Court held that the carrying of a hockey team in a military
truck to the Air Force Station to play a match is not a sovereign function. In this case, an Air
Force vehicle was carrying hockey team of Indian Air Force Station to play a match. After
the match was over, the driver was going to park the vehicle when he caused the fatal
accident by his negligence.
It was argued that it was one of the functions of the Union of India to keep the
army in proper shape and tune and that hockey team was carried by the vehicle for the
physical exercise of the Air Force personnel and therefore the Government was not liable.
The Court rejected this argument and held that the carrying of the hockey team to play a
match could by no process of extension be termed an exercise of sovereign power and the
Union of India was therefore liable for damages caused to the plaintiff.
5. Union of India v. Sugrabai 44
The Bombay High Court held that the transporting of military equipment from
the workshop of the Artillery School is not a sovereign function.
The Bombay High Court overruled the plea of sovereign immunity when a
military driver driving a motor truck carrying a Records Sound Ranging machine from
military workshop to military school of artillery killed a cyclist on the road. It was held that
the driver was not acting in the exercise of sovereign powers. The Bombay High Court
observed in the following words:
“Sovereign powers are vested in the State in order that it may discharge
its sovereign functions. For the discharge of that function one of the sovereign powers
vested in the State is to maintain an army. Training of army personnel can be regarded as
a part of the exercise of that sovereign power. The State would clearly not be liable for a
tort committed by an army officer in the exercise of that sovereign power. But it cannot be
said that every act which is necessary for the discharge of a sovereign function and which
is undertaken by the State involves an exercise of sovereign power. Many of these acts do
not require to be carried out by the State through its servants. In deciding whether a
particular act was done by a Government servant in discharge of a sovereign power
delegated to him, the proper test is whether it was necessary for the State for the proper

43
A.I.R 1967 Delhi 98.

44
A.I.R 1969 Bom 13.
discharge of its sovereign function to have the act done through its own employee rather
than through a private agency.”
6. Khatri(II) v. State of Bihar45
An important question was raised regarding the liability of the government for
wrongful arrest and detention. Moving ahead in the direction of a new dimension of the right
to life and personal liberty, Justice Bhagwati said: “Why should the court not be prepared to
forge new tools and devise new remedies for the purpose of vindicating the most precious of
the precious fundamental rights to life and personal liberty.”
It may be noted that the Government of India has not signed a treaty which
provides for compensation for wrongful arrest and detention. This amply proves the lack of
government’s concern for the precious of the precious rights of the people for the sake of
discounting its own inefficiency and lawlessness.
7. Rudal Shah v. State of Bihar 46
In this case it was laid down a most important principle of compensation
against government for the wrong action of its official the important judgment was handed
down by the Supreme Court against the Bihar Government for the wrongful and illegal
detention of Rudal Shah in Muzaffarpur jail for as many as 14 yrs after he was acquitted by
the Sessions Court in June 1968. The Court ordered compensation of Rs 30,000 for the
injustice and injury done to Rudal Shah and his helpless family.
8. Bhim Singh v. State Of Jammu And Kashmir 47
In this case, the Court awarded the exemplary cost of Rs 50,000 on account of
the authoritarian manner in which the police played with the liberty of the appellant.
9. Saheli, A Women’s Resources v. Commissioner Of Police 48
Saheli v. Commissioner of Police was another milestone in the evaluation of
compensation jurisprudence in writ courts. The masterpiece judgment in Vidyawati, which
was frozen by Kasturi Lal was rightly quoted in this case. The State was held liable for the
death of nine-year-old child by Police assault and beating. Delhi Administration was ordered
to pay compensation of Rs. 75000/-. The significance of this case is that firstly, the revival of
Vidyawati ratio and secondly that the Delhi Administration was allowed to recover money
from those officers who are held responsible for this incident.

45
(1981) 1 SCC 627.
46
(1983) 4 SCC 141.
47
1985 (2) SCALE 1117.
48
1990 AIR 513.
 10. Common Cause, A Registered Society v. Union of India49
The Supreme Court emphatically stressed that Kasturi Lal case, apart from
being criticized, not been followed by the Court in subsequent cases, and therefore, much of
its efficacy as a binding precedent has been eroded. In this case, the entire history relating to
the institution of suits by or against the State or, to be precise, against Government of India,
beginning from the time of East India Company right up to the stage of Constitution, was
considered and the theory of immunity was rejected. In this process of judicial advancement,
Kasturi Lal’s case has paled into insignificance and is no longer of any binding value.
11. N. Nagendra Rao v. State of A.P. 50
In this case, the Supreme Court held that when due to the negligent act of the
officers of the state a citizen suffers any damage the state will be liable to pay compensation
and the principle of sovereign immunity of state will not absolve him from this liability. The
court held that in the modern concept of sovereignty the doctrine of sovereign immunity
stands diluted and the distinction between sovereign and non-sovereign functions no longer
exists.
The court noted the dissatisfactory condition of the law in this regard and
suggested for enacting appropriate legislation to remove the uncertainty in this area.
Rejecting the contention of the state the Supreme Court held that the state was liable
vicariously for the negligence committed by its officers in the discharge of public duty
conferred on them under a statute. As regards the immunity of the state on the ground of
sovereign function, the court held that the traditional concept of sovereignty has undergone a
considerable change in the modern times and the line of distinction between sovereign and
non-sovereign powers no longer survives.
No civilized system can permit an executive as it is sovereign. The concept of
public interest has changed with structural change in society. No legal system can place the
state above the law as it is unjust and unfair for a citizen to be deprived of his property
illegally by the negligent act of the officers of the state without remedy. The need of the state
to have extraordinary powers cannot be doubted. But it cannot be claimed that the claim of
the common man be thrown out merely because the act was done by its officer even though it
was against law.
The need of the state, the duty of its officials and the right of the citizens are
required to be reconciled so that the rule of law in a welfare state is not shaken. In the welfare
state, functions of the state are not the only defence of the country or administration of justice
49
1996(4) SCC 33.

50
AIR 1994 SC 2663.
or maintaining law and order but it extends to regulating and controlling the activities of the
people in almost every sphere.
The demarcation between sovereign and non-sovereign powers for which no
rational basis survives has largely disappeared. The court further said that sovereign
immunity was never available if the state was not involved in commercial or private function
nor it is available where its officers are guilty of interfering with life and the liberty of a
citizen not warranted by law.
In both cases, the state is vicariously liable to compensate. The doctrine of
sovereign immunity has no relevance now when the concept of sovereignty has itself
undergone a major change. Sovereignty is now with the people. The people of India made the
Constitution and gave it to themselves. The structure and functions of the state have
been created and constituted to serve the people.
Accordingly, the state is liable for the negligence of its officers. Further, in a
large number of cases, the courts have ordered the Government to pay compensation to the
victims of torture for violation of their fundamental right guaranteed by Article-21 of the
Constitution.
12. Chairman, Railway Board v. Chandrima Das 51
In this case, the Supreme Court held that the functions of the State not only
relate to the defence of the country or the administration of justice, but they extend to many
other spheres e.g. education, commercial, social, economic, political etc. These activities
cannot be said to be related to sovereign power.
13. State of Gujarat v. Haji Memon 52
It was held in this landmark judgment, that is bound to be of great use to the
public, that if any property (moveable) is seized by the police/custom officials or any other
department of the government, they are under the same responsibility as a Bailee to take care
of the goods as an ordinary man would take care of his own goods under similar
circumstances. The state cannot seek to evade responsibility for loss of goods under its
custody under the cloak of sovereign functions and under the fallacious argument that
Bailment can only arise by a contract (s.148) as the said section is not exhaustive upon
matters of bailment.
14. Basava Kom Dyamgonde Patil v. State of Mysore 53
Wherein Articles seized by the police were produced before a Magistrate, who
directed the Sub-Inspector to keep them in his safe custody and to get them verified and

51
A.I.R. 2000 S.C. 465.
52
A.I.R. 1967 S.C.
53
AIR 1977 SC.
valued by a goldsmith. The articles were lost, while they were kept in the police guard room.
In a proceeding for the restoration of the goods, it was held that when there was no prima
facie defence made out, that due care had been taken by officers of the State to protect the
property, the court can order the State to pay the value of the property to the owner.

UNDER INDIAN CONSTITUTION

After Independence India adopted its Constitution which inter alia guaranteed
Fundamental Rights to its citizens. Democracy, in any sense, cannot be established unless
certain minimal rights, which are essential for existence, are assured to every citizen of the
country. The Preamble to the Constitution depict these aspirations and Part-III of Indian
Constitution provide these right to every citizen within territory of India.54 Part-III of the
Indian Constitution deals with right to life and personal liberty and certain other rights. It
provides for protection of personal liberty against arrest and detention to save human
dignity.55 Rule of law is the essence of the Indian Constitution where a person cannot be
prosecuted or convicted except with the procedure established by law.5612 If conviction of
person is held unconstitutional, he is entitled to all the rights, whether inside prison or
outside, and shall not be deprived of his guaranteed freedom, save by method fair, just and
reasonable. Every activity which facilitates the exercise of the life and personal liberty may
be considered integral part of this right. Simultaneously, the judicial approach towards
interpretation of right to personal liberty under Article 21 has moved from narrow restricted
view to the broader view. In view of the interpretation given to Article 21 by the Indian
judiciary, relevant and coherent approach of compensatory jurisprudence is not only the
demanding task of the day but is also consonance with the constitutional spirit.

REMEDY FOR COMPENSATION UNDER CONSTITUTIONAL LAW

The Constitution of India which has guaranteed Fundamental Rights to the
57
citizens against the State, also grants for the constitutional remedies in the mode of writs
under Article 32 and 226. Under these Articles not only the victim gets his right enforced in
an expeditious manner but can also claim compensation for the violation of Fundamental
Right by the State. To give better protection to the citizens, judiciary is always alert and

54
See. Basil, D. D., Introduction to the Constitution of India, (1995), p 36.
55
See, Patjoshi Joginder, Custodial Death : A Violation of Human Rights SCJ (1997)
Vol. 3, p. 65.
56
See, Code of Criminal Procedure, 1973.
57
For more details see, Constitution of India, Arts. 32 and 226.
vigilant. In this direction the judiciary has opened new chapter in the field of compensation
and contributed to the progressive development of compensation law.

COMPENSATION UNDER WRIT JURISDICTION

The framers of the Indian Constitution had decided to provide for certain basic
safeguards for the people in the new set up, which are called the Fundamental Rights.
Evidently, it is necessary to provide a quick and inexpensive remedy for enforcement of such
rights.58
Even in England finding the Prerogative Writs which the courts developed and
used whenever urgent necessity demanded immediate and decisive interpretation which were
peculiarly suited for this purpose. Under the Constitution of India wide powers have been
conferred on the Courts to issue directions, order or writs, primarily for the enforcement of
Fundamental Rights. The power to issue such directions 'for any other purpose' being also
included.59 During the British period in India the power to issue writs was given to the
Presidency High Courts established under the Charter Act of 1861.
However, the power to issue writs by the High Courts was restricted to the
original jurisdiction of these Courts. Later on when Constitution of India came into force, the
Supreme Court and various High Courts have been conferred powers to issue writs under
Articles 32 and 226 respectively for the enforcement of Fundamental Rights. The Supreme
Court delivering the judgement in T. Bassappa vss. T. Naggappa60 observed :
"In view of the express provision in our Constitution we need not now look
back to the early history or the procedural technicalities of these writs in English law, nor
feel oppressed by any difference of opinion expressed in particular cases by English
Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate
cases and in a appropriate manner as long as we keep to the broad and fundamental
principles that regulate the exercise of Jurisdiction in the matter of granting such writs in
English Law."61
Hence, the Courts in India have accepted the above position in deciding cases
and followed the broad and fundamental principles of English law governing these writs but
avoiding technicalities of English Law. So it is clear that the power of the Supreme Court of
India and the State High Courts in the matter of issuing writs is much wider than that of the
King's Bench Division of the High Court of Justice in England.62

58
Election Commission of India vs. S. Venketta Subha Rao, AIR 1953 SC210at p. 212.
59
Ibid.
60
AIR 1954 SC 440.
61
Ibid: As per J. Mukherji
62
See, Shukla, V. M., Legal Remedies. (1991),
COMPENSATION UNDER PUBLIC INTEREST
LITIGATION
The Public Interest Litigation in India has been initiated by some of the judges
of the Supreme Court. It is pertinent to admit that Public Interest Litigation was the result of
active, innovative, almost explosive, role played by Indian judiciary to ameliorate the
miseries of masses.

TRADITIONAL DOCTRINE OF LOCUS STANDI

One of the important method by which courts saved themselves from spurious
or vicarious litigation was of ascertaining that the person who approached the court had the
locus standi to do so. Such persons must show that he or she is adversely affected by the
impugned action and his or her right has been violated. For instance, if there is a dispute
between two private parties, and one hurts another, then in that case latter has locus standi to
get a determination of the legality of former's action. But then question arises that why should
not law be the same. Whether former party, who is accused is the government, or an agency,
or an officer, or a private party and also whether the injury is to the victim's person or to his
property or to his intangible interest? It is very simple to say that injury in fact is enough for
the person having locus standi. Such question about the locus standi in the determination as
to what interests deserve protection against an injury, and what should be enough to
constitute an injury? Whether certain interests deserve legal protection depends upon whether
they are sufficiently significant and whether good policy calls for, protecting them or denying
them the protection.63Keeping this in view, the courts have enunciated various rules to
confine the "right to access" to those persons possessing certain interest in the issue. Doctrine
of locus standi has been one of the major obstacles in the way to access to justice as far as
poor are concerned.
According to traditional rule, locus standi is that judicial redress available only
to a person who has suffered a legal injury by reason of violation of his legal right or legally
protected interest by the impugned action of the State or public authority or any other person
or who is likely to suffer a legal injury by reason of threatened violation of his legal right or

63
See, Kenneth Gulp Davis, Liberal izecJ Law of Standing, 34, University of Chicago, Law Review, 450(1970),
p. 468.
legally protected interest by any such action.64 The basis of entitlement of judicial redress is
personal injury, violation, actual or threatened, of the legal right or legally protected interest
of the person seeking such redress.65 The question of 'locus standi' or 'standing''66 to sue or
initiate proceedings in a court of law assumed great importance in the domain of public
Interest litigation and the role of State has increased manifold with its concomitant duties and
obligations of public nature67. Justice Krishna Iyer aptly commented that: ''Restrictive rule
about standing are in general inimical to a healthy system of administrative law. If a
plaintiff with a good cause is turned away, merely because he is not sufficiently affected
personally, that means some government agency is left free to violate law, and that is
contrary to public interest. Litigants are unlikely to expand their time and money unless
they have some real interest at stakes. In the rare cases where they wish to sue merely out
of public spirit why should they be discouraged. "68
The existence of right-conferred under Part-Ill of the Constitution is the
foundation of the exercise of the jurisdiction of the Supreme Court under Article 32. In other
words, the right that could be enforced under Article 32 must ordinarily be the right of the
petitioner himself who complains of infringement of such rights and approaches the court for
relief.69 The same principle applies to the exercise of jurisdiction under Article 226 by High
Courts also.70 The Supreme Court of India observed that:
"The Article in terms does not describe the classes of persons entitled to
apply there under; but it is implicit in the exercise of the extraordinary Jurisdiction that the
relief asked for must come to enforce a legal right The right that can be enforced under
Article 226 also shall ordinarily be personal or individual right of the petitioner himself
who complains of infraction of such right and approaches the Court for relief.” 71
(i) Person must be Aggrieved
In order to have locus standi, the petitioner should be as 'aggrieved person'.
Aggrieved person means the person whose right has been infringed. Similarly, it means that
which is based on diverse, variable factors such as the content and intent of the statute of
which contravention is alleged, the specific circumstances of the case, the nature and extent

64
See, Ramachandran, V. G., Law of PVriis, (1993), p. 25
65 Bhagwati J. in S. P. Gupta vs. Union of India, 1981 Supp. SCC, pp.204-205. Also see, Kalyan Singh vs. State of U.P., AIR
1962 SC 1183, R. C. Copper vs. Union of India, (1970) 1 SCC 248 (273); Calcutta Gas Co. Ltd. vs. State of West Bengal,
AIR 1962 SC 1044 (1047); Venkateswara Rao vs. Govt, of A. P., AIR 1966 SC 828 (833).
66 Known in USA "Locus Standi' as 'Standing'.
67 Municipal Corporation, Ratlam vs. Vardhichand, AIR 1980 SC 1622; Also see, Fertilizer Corporation Kamgar

Union vs. Union of India, AIR 1981 SC 344.

68 ibid
69 Charanjit Lai vs. Union of India, AIR 1951 SC 41.
70 Calcutta Gas Co. Ltd. vs. State of West Bengal, AIR 1962 SC 1044.
71 /bid; p. \047.
of the petitioner's interest, and the nature and interest of the prejudice or injury suffered by
him.
In general, a person aggrieved has been understood as one, "who has a
genuine grievance because an order has been made which prejudicially affects his
interest."72 The Supreme Court in a leading case of S.P. Gupta vs. Union of India,73 where
a preliminary objection about the locus standi of the petitioners who were practicing lawyer
was raised has observed that the petitioner being lawyers had sufficient interest to challenge
the constitutionality of the circulation letter issued by the Law Minister. The Supreme Court
negivated the contention of the Union of India and upheld the locus standi of the petitioners.
It was held by the Supreme Court that :
"It may therefore now be taken as well established that where a legal wrong
or a legal injury is caused to a person or to a determinate class of persons by reason of
violation of any constitutional or legal right or any burden is imposed in contravention of
any constitutional or legal provision or without authority of law or any such legal wrong or
legal injury or illegal burden is threatened and such person or determinate class of persons
is by reason of poverty, helplessness or disability or socially or economically disadvantaged
position, unable to approach the Court for relief, any member of the public can maintain
an application for an appropriate direction, order or writ in the High Court under Art. 226
and in case of breach of any fundamental right of such person or determinate class of
persons, in this Court under Art. 32 seeking Judicial redress for the legal wrong or injury
caused to such person or determinate class of persons. Where the weaker sections of the
community are concerned, such as under trial prisoners languishing in Jails without a
trial inmates of the Protective Home in Agra or Harijan workers engaged in road
construction in the AJmer District, who are living in poverty and destitution who are barely
eking out a miserable existence with their sweat and toil, who are helpless victims of an
exploitative society and who do not have easy access to Justice, this Court will not insist on
a regular writ petition to be filed by the public spirited individual espousing their cause and
seeking relief for them. This Court will readily respond even to a letter addressed by such
individual acting pro bono publico. It is true that there are rules made by this Court
prescribing the procedure for moving this Court for relief under Art, 32 and they require
various formalities to be gone through by a person seeking to approach this Court. But it
must not be forgotten that procedure is but a handmaiden of Justice and the cause of
Justice can never be allowed to be thwarted by any procedural technicalities. The Court

72
Per Lord Denning, M. R,, in Attorney General of the Zambia vs. N' Jie, (1961) (634); Similar Observation of
Mitter J. in Adi Ferozshah Gandhi vs. H. M. Seervai, (1970) 2 s e c 484 (503): AIR 1971 SC 385 (399).
73
1981 Supp. s e c 87, AIR 1982 SC 149.
would therefore unhesitatingly and without the slightest qualms of conscience cast aside
the technical rules of procedure in the exercise of its dispensing power and treat the letter
of the public minded individual as a writ petition and act upon it. Today, a vast revolution
is taking place in the Judicial process; the theatre of the law is fast changing and the
problems of the poor are coming to the forefront. The Court has to innovate new methods
and devise new strategies for the purpose of providing access to Justice to large masses of
people who are denied their basic human rights and to whom freedom and liberty have no
meaning. The only way in which this can be done is by entertaining writ petitions and even
letters from public spirited individuals seeking Judicial redress for the benefit of persons
who have suffered a legal wrong or a legal injury or whose constitutional or legal right has
been violated but who by reason of their poverty or socially or economically disadvantaged
Position are unable to approach the Court for relief. It is in this spirit that the Court has
been entertaining letters for Judicial redress andtreating them, as writ petitions and we
hope and trust that the High Courts of the country will also adopt this pro-active, goal-
oriented approach. But we must hasten to make it clear that the individual who moves trial
Court for Judicial redress in cases of this kind must be acting bona fide with a view to
vindicating the cause of Justice and if he is acting for personal gain or private profit or out
of political motivation or other oblique consideration, the Court should not allow itself to
be activised at the instance of such person and must reject his application at the threshold,
whether it be in the form of a letter addressed to the Court or even in the form of a regular
writ petition filed in Court. We may also point out that as a matter of prudence and not as a
rule of law the Court may confine this strategic exercise of jurisdiction to cases, where
legal wrong or legal injury is caused to a determinate: class or group of Persons or the
constitutional or legal right of such determinate class, or group of persons is violated and
as far as possible, not entertain cases of individual wrong or injury at the instance of a
third party, where there is an effective legal aid organisation which can take care of such
cases. "74
In People Union for Democratic Right vs. Union of India,75 the Supreme
Court further elaborated the concept of locus standi :
". . . the workmen whose rights are said to have been violated and to whom a
life of basic human dignity has been denied are poor, ignorant, illiterate humans who by
reason of their poverty and social and economic disability, are unable to approach the
Courts for judicial redress and hence the petitioners have under the liberalised rule of

74
Ibid.
75
AIR 1982 SC 1473.
standing, locus standi to maintain the present writ petition espousing the cause of the
workmen."76

To deal with the constitutional provisions under Part-III of the Constitution,

the Supreme Court of India as protector and guarantor of rights of the people, most of whom
are ignorant and poor, liberalized the rule of locus standi. The Apex Court came out with the
following considerations : Firstly, to enable the court to reach the poor and disadvantaged
sections of society who are denied their rights and entitlements; Secondly, to enable
individuals or groups of people to raise matters of common concern arising from dishonest or
inefficient governance and; Lastly, to increase public participation in the process of
constitutional adjudication.77 Thus a qualitative twist has been taken by the Court to the
traditional rule of locus standi and paved the way for Public Interest Litigation. All these
litigations are inspired by public interest.
(ii) Innovative Role Played by Indian Judiciary in Present Context
Whenever a legal wrong or legal injury is caused to a person by reason of
violation of any constitutional or legal right and such person or determinate class of persons
is by reason of poverty, helplessness or disability or socially or economically disadvantaged
position unable to approach the court for relief, any member of the public can maintain an
application for an appropriate direction, order or writ in the High Court under Article 226 of
the Constitution.78 Further, for the violation of any Fundamental Right of such person or
determinate class of person remedy lies in the Supreme Court under Article 32 for seeking
judicial redress for the legal wrong or injury caused to such persons or determinate class of
persons. It was only in the year 1976, when Justice Krishna Iyer while granting locus standi
to an association of workers as such on behalf of individual workers for the claim of some
bonus in Mumbai Kamgar Sabha vs. Abdul Bhai 79initiated the concept of Public Interest
Litigation. In the present case, Krishna Iyer J. Rightly observed:
"Test litigation, representative actions, pro bono publico, broadened forms
of legal proceedings are in keeping with the current accent on Justice to the common man
and a necessary disincentive to those who wish to bypass the real issues on the merits by
suspect reliance on peripheral, procedural shortcoming. Public interest is promoted by a

76
/hid; p. 1483.
77
/d
78 People's Union for Democratic Rights vs. Union of India, AIR 1982 SC 1473; Bandhua Mukti Morcha vs. Union of India,

AIR 1984 SC 802; Sheela Barse vs. Union of India, AIR 1986 SC 1773; M. C. Mehta vs. Union of India, AIR 1987 SC 965;
Sachinand Pandey vs. State of W. B., AIR 1987 SC 1109; M. C. Mehta vs. Union of India, AIR 1988 SC 1115; Rural
Litigation and Entitlement Kendra vs. State of U. P., AIR 1989 SC 594; Bandhua Mukti Morcha vs. Union of India, AIR
1992 SC 38; D. K. Basu vs. State of W. B., AIR 1997 SC30I7; Mahesh Chand Bishl vs. Union of India, AIR 1999 SC 1575;
Centre for Public Interest Litigation vs. Union of India, AIR 2001 SC 80; Hindustan Paper Corporation Ltd. vs. Ananta
Bhattacharjee, (2004) 6 SCC 213.
79 AIR 1976 SC 1465
spacious construction of locus standi in our socio-economic circumstances and conceptual
latitudinarianism permits taking liberties with individualization of the right to invoke the
higher court where the remedy is shared by a considerable number, particularly when they
are weaker, less litigation, consistent with fair process, is the aim of adjuctive law."80
So, in this manner, the traditional rule of locus standi has been made more
liberal. The Court in such cases put aside all technical rule of procedure and entertains even a
letter addressed by an individual acting pro-bono publico.81 Krishna Iyer, J. observed:
"Law, as I conceive it, is a social auditor and this audit function can be put
into action only when someone with real public interest ignites the jurisdiction. "82
Hence, the liberal approach of locus standi allowed Public Interest Litigation
against the violations of human rights, on behalf of the victims of political oppression, social
tyranny and economic exploitation to be made by persons or organization. The court further
entertain Public Interest Litigation into the allegations of the killing of innocent people or
suspected accused through false encounters,83 the death of persons in police custody because
of torture,84 cases of the blinding of prisoners by the police,85 i against inhuman working
condition,"86 for controlling occupational health hazards,87 etc. The Courts took full
advantage of the opening words of Articles 32 and 226 of the Constitution. Both these
Articles give freedom to the Courts to mould the remedies and even invent new remedies for
the enforcement of the rights. Traditionally, the writ jurisdiction was supposed to be
exercised only for stopping or preventing a mischief, not for providing relief for the mischief
already done. If a person was illegally detained, a Court could set him free but could not
provide compensation for wrongful confinement or punishment for the wrongdoer. The
persons concerned have to prosecute or sue the police or any other authority responsible for
such illegal detention.
In India, the tort litigation is very less, because of delays, high costs of
litigation and Indian Judges tendency to award meager compensation. The Apex Court rightly
felt that mere release of person from illegal detention would not be an adequate relief for him
and would not deter irresponsible police officers from riding roughshod over people rights.

80
ibid.
81
Bandhua Mukti Morcha vs. Union of India, AIR 1984 SC 802.
82
Fertilizer Corporation Kamgar Union vs. Union of India, AIR 1981 SC 344 at 354.
83
Chaitanya Kalbagh vs. State of U.P., (1989) 2 SCC 314.
84
N. K. Basu vs. West Bengal, (1997) 6 SCC 642.
85
Khatri & Others vs. State of Bihar, (1981) 1 SCC 623.
86
Bandhuva Mukti Morcha vs. Union of India, AIR 1984 SC 802.
87
C.E.R. C. vs. Union of India, AIR 1995 SC 922.
The Supreme Court, therefore, used the writ-jurisdiction for awarding token compensation to
the aggrieved person.88

NEW DIMENSIONS ADDED TO ARTICLE 21

In Constitution of India the Right to Life and Personal Liberty has witnessed
different phases at different point of time. Article 21 of the Constitution lays down "No
person shall be deprived of his life or personal liberty except according to procedure
established by law."89 The expression personal liberty in Art. 21 of the Constitution is of the
widest amplitude and it covers a variety of rights which go to constitute the personal liberty
of man and some of them have been raised to the status of distinct fundamental rights and
90
given an additional protection under Art. 19. Now if a law depriving a person of personal
liberty and prescribing a procedure for that purpose within the meaning of Art. 21 has to
stand the test of one or more of the fundamental rights conferred under Art. 19 which may be
applicable in a given situation, exhypothesis it may be able to be tested with reference to Art.
14. The principle of reasonableness, which legally as well as philosophically, is an essential
element of equality or non arbitrariness pervades Art. 14 like a brooding omnipresence and
the procedure contemplated by Art. 21 must answer the test of reasonableness in order to be
inconformity with Art. 14. It must be 'right, just and fair and not arbitrary fanciful or
oppressive, otherwise, it would be no procedure at all and the requirement of Art. 21
would not be satisfied.''91
Through the Public Interest Litigation the Court has given real, practical and
enlarged meaning to the right to life. The Constitution enacted Article 32 as Fundamental
Right and permitted persons to approach the Supreme Court under Article 32, and the High
Court under Article 226 to enforce Fundamental Rights. This is wholly satisfactory in the
case of people with the means or ability to secure legal assistance and move to a court.
Permitting Public Interest Litigation and even entertaining post-cards and letters92 as petition
enabling hundred of thousands of helpless persons, under trails, bonded labourers, etc. to
obtain justice, and enforce their Fundamental Rights. Restructured Article 21 is a by product
of judicial dynamism and activism of the Supreme Court of India. The emergence of the

88
AIR 1983 SC 1086.
89
See, The Constitution of India, 1950, Article 21.
90
Maneka Gandhi vs. Union of India, AIR 1978 SC 597; Also see Ukay Dilip, Jurisprudence of Compensatory
Jurisdiclion and Human Rights – Constitutional Command and judicial Discourse, Journal of Symbosis Law
College, (2001), Vol. I,
91
Ibid.
92
D. K. Basu vs. State of W. B., AIR 1997 SC 610.
Indian Supreme Court as a custodian of people's right in a democratic way is the most
significant and important development in the judicial history of independent India. It is being
envisaged not as a redressal forum of elite class in the society, but it is perceived as a forum
for raising, redressing and articulating the problems of have-nots, deprived, oppressed,
downtrodden, women and children, environmental groups, exploitation and abuse of powers
and position by persons holding high public office.93
Further, Article 32 says about remedies for enforcement of rights conferred by
Part-III of the Constitution. It is established that remedy under Article 32 is available only for
the violation of Fundamental Rights guaranteed by it. As a result of the liberalised view taken
by the Supreme Court in the interpretation of Article 21, a new approach to protect the
interest of the aggrieved person has been developed by it. This power under Articles 32 and
226 shaped the destiny of the compensatory jurisprudence to provide a monetary
compensation to the aggrieved party in order to provide him adequate relief.

THE ROLE OF INDIAN JUDICIARY IN

CONCEPTUALISING THE CONCEPT OF
COMPENSATORY JURISPRUDENCE
The earlier view taken by the Indian judiciary that no compensation or
monetary relief can be awarded by the court under Article 32 of the Constitution. But, now in
94
a number of cases, the court has awarded compensation to the victims of the infringement
of Fundamental Rights.
95
In Khatri vs. State of Bihar popularly known as the Bhagalpur blinding
case Justice Bhagwati countered the question of compensation. Why should the court not be
prepared to forge new tools and devise new remedies for the purpose of indicating the most
precious Fundamental Right to life and personal liberty? A new interpretation was accorded
to Article 32 and Article 21 of the Constitution, the court ordered the State to meet the
expenses of housing those men in blind homes in Delhi.

93
See, Kilep Ukais, Human Rights and Judicial Activism in India (1997) CULR, Vol. X X I ,
Nos. 344, p. 432.
94
Rudul Sah vs. Union of India, AIR 1983, SC 1086; Saheli vs. Commissioner of Police, Delhi AIR 1990, SC
513; People Union for Civil Liberties vs. Union of India (1997) 3 s e c 433; Vishaka vs. State of Rajasthan
(1997) 6 SCC 241; Nilabati Behera vs. State of Orissa, AIR 1993 SC 1960; D.K. Basu vs. State of West Bengal
(1997) 1 SCC 416; Bodhisattwa Gautam vs. Subhra Chakraborty AIR 1996 SC 922; Chairman, Railway Board
vs. Chnadrima Dass (2000) 2 SCC 465, R.D. Uphadhyaya vs. State of A.P. (2001) 1 SCC 437.
95
AIR 1981 SC928.
 The Supreme Court in case of Rudal Shah vs. State of Bihar 96observed that
in the exercise of its jurisdiction under Article 32, payment of money in the nature of
compensation consequential upon the deprivation of a Fundamental Right to life and liberty
of a petitioner. The court further observed that Article 21 which guarantees the right to life
and liberty will be denuded of its significant content if the power of the Supreme Court were
limited to passing orders of release from illegal detention. On the telling way in which the
violation of that right can reasonably be prevented and due compliances with the mandate of
Article 21 secured, is to mallet its violation in the payment of monetary compensation.
Administrative sclerosis leading to flagrant infringements of Fundamental Rights cannot be
corrected by any other method open to the judiciary to adopt. The right to compensation is
some palliative for the unlawful acts of the State instrumentalities which act in the name of
public interest and presents for their protection the power of the State as a shield. Respect for
the rights of individuals is the true bastion of democracy. Therefore, the State must repair the
damage done by its officers to the petitioner's right. It may have recourse against those
officers. In the instant case the petitioner was detained illegally in the prison for over fourteen
years after his acquittal in a full dressed trial. He filed a Habeas Corpus petition in the
Supreme Court for his release from illegal detention. He obtained that relief, his detention in
the prison after his acquittal being wholly unjustified. He further contended that he was
entitled to be compensated for his illegal detention and that the Supreme Court ought to pass
an appropriate order for the payment of compensation in the Habeas Corpus petition itself.97
Taking into consideration the great harm done to the petitioner by the
Government of Bihar, the Supreme Court ordered the State to pay to the petitioner a further
sum of Rs. 30,000/- as an interim measure in addition to the sum of Rs. 5,000/- already paid
by it. The order of compensation was in the nature of a palliative and it did not preclude the
petitioner from bringing a suit to recover appropriate damages from the State and its erring
officials.98 Chandrachud C. J. further observed that:
"The important question for our consideration is whether in the exercise of
its Jurisdiction under Art. 32, this Court can pass an order for the payment of money if
such an order is in the nature of compensation. Consequential upon the deprivation of a
Fundamental Right the instant case is illustrative of such cases. The petitioner was
detained illegally in the prison for over 14 years after his acquittal in a full dressed trail.
He filed a Habeas Corpus Petition in this court for his release from illegal
detention. He obtained that relief. Our finding being that his detention in the prison after

96
AIR 1983 SC 1086.
97
Ibid.
98
ibid p. 1087.
his acquittal was wholly unjustified. He contends that he is entitled to be compensated for
his illegal detention and that we ought to pass an appropriate order for the payment of
compensation in this Habeas Corpus Petition itself."99

Hence, compensatory jurisprudence took a clear shape in Rudal Shah’s

case100 although the foundation was laid down in Khatri's case101. So in this way the
Supreme Court of India by way of compensatory jurisprudence gave a different colour to
right to life as a human right under Article 21 and provide an opportunity to the judicial
managers to show a ray of hope to victims in the form of compensation to negate a wrong and
injustice heaped upon them by the State and its officers.
In Sebastian Hongary vs. Union of India102, where the Supreme Court by a
writ of Habeas Corpus required the Government of India to produce two persons before it,
who were taken to the military camp by the Jawans of army and allegedly killed by them.
Since the government failed to provide relief to the aggrieved wives of the killed persons, the
court keeping in view the torture, agony and mental oppression through which the wives of
the persons in question had to pass, directed the Union Government to pay Rs. one lakh each
to the two women.
Further, in Bhim Singh vs. State of J & K and Others103, the Supreme Court
observed that when a person comes to this Court with a complaint that he has been arrested
and imprisoned with mischievous or malicious intent and that his constitutional and legal
rights were invaded, the mischief or malice and the invasion may not be washed away or
wished away by his being set free. In appropriate cases the court has the jurisdiction to
compensate the victim by awarding suitable monetary compensation. The Supreme Court
further said that where a member of the Legislative Assembly was arrested while enroute to
seat of Assembly and in consequence the member was deprived of his constitutional right to
attend the Assembly Session and responsibility for arrest laid with higher echelons of the
Government and award of compensation amounting to Rs. 50,000/-. The growing violation of
the Human Rights by the police administration and armed forces is not only a danger to
human being but also to the existence of humanity. The Supreme Court

99
Ibid: p. 1089
100
ibid
101
Khalri vs. State of Bihar, AIR 1981 SC 928.
102
AIR 1984 SC 1026.
103
AIR 1986 SC 494.
 In Saheli, A Women Resources Centre vs. Commissioner of Police,
Delhi104 departed from the settled law of State liability and added that the State is at liberty to
realize the entire amount or part thereof from the erring officers.
105
But in State of Maharashtra and Others vs. Ravikant S. Patil where the
under trial prisoner handcuffed and taken through the streets in a procession by police during
investigation, the Supreme Court held it the violation of Human Rights under Article 21 of
the Constitution and awarded Rs. 10,000/- as compensation to be paid by the State. The
responsibility of erring police officers was defended by the Supreme Court by making the
observation that Police Officer responsible for the act acted only as an official and even
assuming that he exceeds his limits, still he could not be made personally liable to pay
compensation to the victim i.e. under trial. It is also considered that prerogative writ is of
highest constitutional importance, being a remedy available to the meanest against the
mightiest. The Supreme Court of India further considered that the technicalities and legal
niceties are no impediment to the court entertaining even an informal communication as a
proceeding for Habeas Corpus if the basic facts are found.106 In the context as the approach
of the court is concerned, anybody acting pro bono publico can knock the door of the court
for his relief.107
108
In another case of Nilabati Behera vs. State of Orissa where deceased
about 22 years of age with a monthly income of Rs. 1200-1500 died in police custody.
The letter of the mother of the deceased was considered as writ petition. The
Supreme Court awarded the compensation of Rs. 1,50,000 and ordered that the amount of
compensation would not affect any other liability of the respondent or any other person
flowing from the custodial death but could be adjusted in the amount of compensation in the
event of any other proceedings taken by the petitioner for recovery of compensation on the
same ground, so that amount to that extent might not be recovered twice by the petitioner.109
The Court further emphasized that the claim in public law for compensation for contravention
of human rights, the protection of which is guaranteed in the Constitution, is an
acknowledged remedy for enforcement and protection of such rights which is based on strict
liability. The defence of sovereign immunity being inapplicable, alien to the concept of
guarantee of Fundamental Rights, there can be no question of such a defence being available
in the constitutional remedy. The impact of that historical ruling is that anyone whose

104
AIR 1990 SC 513.
105
(1991) 2 s e c 373.
106
Sunil Batra vs. Delhi Administration, AIR 1980 SC 1579.
107
Kishore Singh Ravinder Dev vs. State of Rajasthan, AIR 1981 SC 625
108
AJR J993SC 1960
109
Ibid
fundamental right is adversely affected by the action of State can approach to the Supreme
Court or High Court under Articles 32 and 226 respectively.
In view of the decisions of the Apex Court in Rudul Sah110, Sebastian M.
Homgray111, Bhim Singh112, Saheli, A Women Resource Centre,113 Ravi Kant V.
Patil114, theliability of State to pay compensation cannot be doubted and was rightly not
disputed. The court observed that it should be appropriate to spell out clearly the principle on
which the liability of the State arises in such cases for payment of compensation. The Court
further mentioned straightway that award of compensation in a proceeding under Art. 32 by
Supreme Court or by the High Court under Art. 226 of the Constitution is a remedy available
in public law, based on strict liability for contravention of fundamental rights to which the
principle of sovereign immunity does not apply.
The theme of compensatory jurisprudence was further developed in People's
Union for Democratic Rights vs. Police Commissioner, Delhi115 where a labourer was
taken to the police station for doing some work. He was severely beaten when he demanded
wages and ultimately succumbed to the injuries. It was held that the State was liable to pay
compensation and accordingly directed to the Government to pay Rs. 75,000/- as
compensation to the family of the deceased. The Court awarded the compensation to the
victim following the principle laid down in M.C. Mehta vs. Union of India116 case where
the court observed:
"The power of the Court to grant such remedial relief may include the
power to award compensation in appropriate cases. We are deliberately using the words 'in
appropriate cases' because we must make it clear that it is not in every case where there is
a breach of a Fundamental Right committed by the violator that compensation would be
awarded by the Court in a petition under Article 32. The infringem.ent of the Fundamental
Rights must be grossy patenty that is, incontrovertible and ex-facie glaring and either such
infringement should be on a large scale affecting the Fundamental Rights of a large
number of persons or it should appear unjust unduly harsh or oppressive on account of
their poverty or disability or socially or economically disadvantaged position to require the
person or persons affected by such infringement to initiate and pursue action in the civil
courts."117

110
AIR 1993 SC 1086
111
AIR 1984 SC 1026
112
AIR 1987 SC 494
113
AIR 1990 SC 513
114
(1991)2 sec 373
115
(1989)4 s e c 730.
116
AIR 1987 SC 1086.
117
ibid.
 118
Anand J emphasized: "It is an obligation of the State to ensure that there
is no infringement of the indefeasible right of a citizen to life except in accordance with
law while the citizen is in its custody. The precious right guaranteed by Article 21 of the
Constitution of India cannot be denied to convicts, under trials or other prisoners in
custody, except according to procedure established by law. There is a great responsibility
on the police or prison authorities to ensure that the action in its custody is not deprived of
his right to life. His liberty is in the very nature of things circumscribed by the very fact of
his confinement and therefore his interest in the limited liberty left to him is rather
precious. The duty of care on the part of the State is strict and admits of no exception. "119
The principle is further elucidated and re-affirmed by the Supreme Court in D.
K. Basu vs. State of West Bengal120.
The Court observed: "The claim, in public law for compensation for
unconstitutional deprivation of Fundamental Right of life and liberty, the protection of
which is guaranteed under the Constitution, is a claim based on strict liability and is in
addition to the claim available in private law for damages for tortuous act of the public
servants. Public law proceedings serve a different purpose then the private law
proceedings. Award of compensation for established infringement of the indefeasible right
guaranteed under Article 21 of the Constitution is a remedy available in public law since
the purpose of public law is not only to civilize public power but also to assure the citizen
that they live under legal system wherein their rights and interest shall be protected and
preserved.”121
The Supreme Court as regard to the quantum of compensation has pointed out
that the same will depend on peculiar facts and circumstances of each case and no straight
jacket formula can be evolved in that behalf. But it is in addition to the traditional remedy and
not in derogation of them, the amount of compensation against any amount awarded to the
claimant by way of damages in civil suit.

THE RATIONALE BEHIND ESTABLISHING

STATE LIABILITY
The traditional tort law distinguishes damages as a remedy that affirms rights,
provides compensation, promotes deterrence, vindicates the citizens' reliance on the sacred

118
Nilabati Behera vs. State of Orissa, AIR 1993 SC I960 at 1972.
119
ibid
120
(1997) 1 sec 416; 1997 SCC 92; AIR 1997 SC 610.
121
ibid
nature of their rights and secures corrective justice. Imposing government liability for
constitutional violations attempts to advance analogous goals, which include:
1. Affirming the plaintiffs rights
When an individual's constitutional rights are violated, remedies, such as
injunctions can only serve to restrict future constitutional harm. Unless he is paid damages
for the past loss he has suffered, his constitutional rights would be meaningless.'·
Compensations paid for past violations, as opposed to writs for habeas corpus, etc. serve to
underline the sacred nature of the rights concerned, and the stringent outlook of the judiciary
towards the State.
2. Deterrence of Constitutional violations and the avoidance of over deterrence
Deterrence is of prime importance in the context of violations of constitutional
rights, because the impugned conduct is the very action that the framers of the Constitution
sought to avoid. Unlike an injunction or other remedies, damages are a tangible result, which
forces the government to transfer funds from the public treasury to the private citizen. This in
turn requires either higher taxes or government cost-cutting. In the process, the government,
if held accountable through institutional liability, would then take the necessary steps to
reduce its liability by selecting more competent employees, by providing them with better
and more continuous training, by ensuring more supervision of its employees, and by creating
internal disciplinary rules for violators of the Constitution. Simultaneously, as personal
liability of the officers is removed, government agents can perform their governmental duties
zealously, knowing that any unwitting/unavoidable constitutional infraction will be covered
by their employer and not by their paycheck.
3. Breach of Social Contract:
A Constitution is a social contract through which individuals give up certain
liberties, in exchange for government-provided community services like enforcement of
social norms through criminal law, economic infrastructure, and social stability. However,
the government also agrees to certain limitations on its authority in the form of constitutional
rights. Whenever the government breaches this contract on which the people have relied to
their detriment, they deserve compensation.
4. Corrective Justice
The Aristotelian theory of "corrective justice" requires the award of monetary
compensation whenever one party ignores the limitations placed upon its behavior with
respect to another party. In certain cases, when the government oversteps its limitations, the
plaintiff suffers loss while the state may realize gains through more efficient policy
implementation. The transfer of funds from the wrongdoer to the victim restores the balance.
 5. Responsibility as Principal and Employer
Since the government selects its own agents, trains them, and oversees their
employment, the government alone is in the best position to institute the programs necessary
to eradicate constitutional violations. Because most constitutional violations are attributable
to systemic flaws in the state, it is the state that should face liability in order to facilitate
correction of those flaws. By selecting the best employees, by providing them with adequate
and continued training, and by disciplining them for their unconstitutional behavior, the
government can substantially reduce the number of constitutional torts. Further, it is
inconsistent that the government may be liable for the common law torts of its employees but
not their constitutional misconduct.
In the USA, the concept of a "Constitutional Tort" implicitly recognizes that
constitutional rights and liberties are specific limitations on governments and must be
enforceable. Thus, it naturally follows that the courts must allow the traditional common law
remedy, that is, damage suits, not because constitutional rights parallel the interests protected
by common law tort actions, but because constitutions are enforceable in their own right.
 CHAPTER III
LAW COMMISSION REPORTS AND RECOMMENDATION
Besides the many judgments of various High Courts and the Supreme Court of
India, the Law Commission of India has also submitted the crucial Reports in which it has
recommended to provide the compensation to the victim of crime. Among many Reports
142nd, 144th, 146th, 152nd 154th and 156th are very important reports which have made a
very important contribution towards victim compensation. Recently the Report of: Malimath
Committee' has strongly recommended strengthening the compensatory mechanism in India.
Following the various Reports and judgments, the Government of India has made the
amendments of Cr.P.C. and Section1357A has been inserted after Section 357 in 2009.
Various Reports of Law Commission of India as well of Committees on
Reforms of Criminal Justice administration have played a pivotal role in developing
compensatory jurisprudence in India. The Law commission of India in its hitherto submitted
Reports on the Indian Penal Code,1860 (IPC)and the Code of Criminal Procedure,1898 and
of 1973 has deliberated upon the issue of justice to victims of crime and has also suggested
some proposals for reform. The Malimath Committee (2003) on Reforms of Criminal Justice
System in India has also laid emphasis on the participation of victims in the criminal justice
processes and has advocated for compensation and restitution of the victims.

42ND REPORT OF LAW COMMISSION, 1971-

RECOMMENDATION REGARDING COMPENSATION
UNDER INDIAN PENAL CODE, 1860
Fifth Law Commission, in 42ndReport74 dealt with compensation to victim of
crime in India. While dealing, it referred to and highlighted the "three patterns" of
compensating victims of crime as reflected in Codes of Criminal Procedure of France,
Germany and (Former) Russia. The three patterns are (1) Compensation by the State, (2)
Compensation by the offender either by asking him to pay it from the fine imposed or a
specified amount, and (3) Duty to repair the damage done by the offender.
In India, criminal law does not provide for payment of compensation to victim
of crime for any 'loss' or 'injury' — physical, mental or psychological caused to him by the
offender. With a view to give prominence in the Indian Penal Code, 1860 to the payment of
compensation out of fine imposed and to give a substantive power to the trial Court to this
effect, Law Commission of India in its 42nd report (1971) suggested the insertion of Section
62 in the Penal Code122.
The Parliament did not pay attention to the recommendations of the Law
Commission. But, the existing provision relating to compensation was inserted in the Code of
Criminal Procedure through amendment and its application was expanded. It was provided in
the modified Section 357 (545 of old Code) of Criminal Procedure Code,1973 that, in every
case where the new Section 62 of the Penal Code is attracted, but the Court decides not to
make an order for payment of compensation out of the fine, it should record its reasons.
However, Justice R. L. Narasimham, member of the Law Commission opined that Section
357 (Section 545 of Criminal Procedure Code, 1898) is wholly unsatisfactory because of
some reason. Firstly, under Section 545, Cr. P.C. (357 New Code) compensation can be given
only in money, to the injured party. There is no provision for direct reparation for the harm
caused. Secondly, the procedure involved in the section is circuitous, dilatory, expensive and
caused much harassment to the injured complainant. Besides, it does not cover cases of those
accused persons who are unable to pay the fine. The evil effect of short term imprisonment
persists and the complainant also may not be able to derive any advantage as far as reparation
is concerned.
Accordingly Justice R. L. Narasimham recommended deletion of Section 545
(Section 357 New Code) from the Criminal Procedure Code and insertion of a new section in
Indian Penal Code123 to make improvements in the law concerning payment of compensation
by the offender. Basically it gave emphasis to compensation by a convict out of the fine
122 “Whenever a person is convicted of an offence punishable under Chapter XVI, Chapter XVII or Chapter XXI of this
Code or of an abetment of such offence or of a criminal conspiracy to commit such offence and is sentenced to a fine
whether with or without opinion that compensation is recoverable by civil suit by any person for loss or injury caused to him
by that offence, it shall be competent to the Court to direct by the sentence that the whole or any part of the fine realized
from the offender shall be paid by way of compensation to such person for the said loss or injury.
Explanation— Expenses properly incurred by such person in the prosecution of the case shall be deemed part of the loss
caused to him by the offence.” See 42nd Report of law commission, 1971,
123 70A (1) In the case of conviction for an offence against the human body and offence against property, defamation or an

offence against privacy, the Court may direct that the person convicted shall pay compensation to the person mentioned in
sub-section (4).
(2) Such compensation need not necessarily be monetary and it may be in any form which the Court considers to be
sufficient recompense to the injured party. But, while passing the order for compensation, the Court shall estimate its
monetary value for the purpose of execution of the order.
(3) The Court shall not, under this Section direct payment of compensation whose monetary value exceeds the amount of
fine which it is empowered to impose.
(4) An order under sub-section (1) may be made—
(a) In addition to any other punishment to which the person convicted may have been sentenced.
(b) In substitution of fine, where the offence not being a capital offence, is one punishable with fine. (5) The compensation
under this section may be directed to be paid—
(a) to any person who has incurred expenses in prosecution for defraying expenses properly incurred;
(b) to any person for any loss or injury caused by the offence, when compensation is in the opinion of the Court, recoverable
by such person in a civil Court;
(c) in the case of conviction of any offence for having caused the death of another person or of having abetted the
Commission of such offence, to the person who are, under the Fatal Accident Act. 1855,
entitled to recover damages to the person sentenced, for the loss resulting to them from such death; or
(d) In the case of a conviction for any offence which includes, theft, criminal misappropriation, criminal breach of trust, or
cheating or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be
stolen, to any bona fide purchaser of such property for the loss of the same, if such property is restored to the possession of
the person entitled thereto.
imposed upon him for committing an offence against the human body, property, defamation
or abetment of or criminal conspiracy to commit such offence. Secondly, the provision
favoured compensation to the victim by pleading for imposition of a statutory duty on
offenders to recompensate monetarily or otherwise, the victim.
The second approach not only shows equal concern to victim of crime but also
visualizes a real and reasonable compensation of victim. Unfortunately, whole of the
recommendations of the Law Commission did not find a place in the provision of the Indian
Penal Code, 1860.

156TH REPORT OF LAW COMMISSION, 1997

In 1997, The 14th Law Commission, in its 156th Report on the IPC recalling
its earlier recommendations made in 1994 in its 152nd Report and in its 154th Report 1996,
on the Cr.P.C. for framing a ‘Victim Compensation Scheme’ by State governments and
realizing that the payment of compensation as an ‘additional punishment’ not only requires
an inquiry into a variety of circumstances but also a few cases may not warrant compensation
by way of punishment, opined that it would be ‘not appropriate’ to include order of payment
of compensation by way of punishment in Sec.53 IPC.

226th Report of Law Commission, July 2009,

Recommendation Regarding Compensation under Indian
Penal Code, 1860
The law commission submitted its report to the Hon’ble Supreme Court of
India for its consideration in the pending proceedings filed by one Laxmi in W.P. (Crl.) No.
129 of 2006 on “The Inclusion of Acid Attacks as Specific Offences in the Indian Penal
Code and a law for Compensation for Victims of Crime” Law commission recommended
that a separate Act should be proposed for dealing with compensation to victims of acid
attacks, rape, sexual assault, kidnapping etc. It suggested a broader legislation so that it can
deal with the problems of victims of different crimes who need rehabilitation and
compensation for survival.
MALIMATH COMMITTEE REPORT124, 2003
In March 2003, the Malimath committee in its Report on reforms on the
Criminal Justice System in India, has, among other things also delved into ‘justice to
victims’ and urged the legislature to draft a law on the subject. Like Law Commission,
Malimath committee also felt that compensating victims of crime is a state obligation and
proposed a ‘victim compensation law’ providing for the creation of a ‘victim compensation
fund’ to be possibly administered by the Legal Services Authorities created under the Legal
Services Authority Act, 1987. It also laid down the categories of offences where
compensation can be awarded, not be awarded and withdrawn. The merit of Malimath
committee report is that it, for the first time, delved into the ‘participation’ of victims in
criminal processes as an inseparable component of justice.
Besides giving so many recommendations for reformations of criminal justice
system, it has made strong recommendations to provide immediate compensation to the
victims of crime. These recommendations include:
(a) Victim 'compensation is a State obligation in all serious crimes, whether
the offender is apprehended or not, convicted or acquitted. This is to be organized in a
separate legislation by Parliament. The draft bill on the subject submitted to Government in
1995 by the Indian Society of Victimology provides a tentative framework for consideration.
(b) The Victim Compensation law will provide for the creation of a Victim
Compensation Fund to be administered possibly by the Legal Services Authority.
The law should provide for the scale of compensation in different offences for
the guidance of the Court. It may specify offences in which compensation may not be granted
and conditions under which it may be awarded or withdrawn. It is the considered view of the
Committee that criminal justice administration will assume a new direction towards better
and quicker justice once the rights of victims are recognized by law and restitution for loss of
life, limb and property are provided for in the system. The cost for providing it is not
exorbitant as sometimes made out to be. With increase in quantum of fine recovered,
diversion of funds generated by the justice system and soliciting public contribution, the
proposed victim compensation fund can be mobilized at least to meet the cost of
compensating victims of violent crimes. Even if part of the assets confiscated and forfeited in
organised crimes and financial frauds is also made part in the Fund and if it is managed
efficiently, there will be no paucity of resources for this well conceived reform. In any case,

124
Government of India, committee on Reforms of Criminal justice System, 2003
dispensing justice to victims of crime cannot any longer be ignored on grounds of scarcity of
resources125.
The merits of Committee recommendations lie in the fact that it forcefully
argued to provide State supported compensation and to create 'Victim Compensation Fund'
by pulling together 'fines recovered', 'funds generated by the criminal justice system' and
'solicited public contributions'. Even if part of the assets confiscated and forfeited in
organized crimes and financial frauds are recommended to include in compensatory funds.

125
Report on 'Committee on Reforms of Criminal Justice System' March 2003 constituted under Govt of India,
Ministry of Home Affaires
 CHAPTER IV

LEGISLATIVE PROVISIONS REGARDING

COMPENSATION
There is neither a comprehensive legislation nor a well designed statutory
scheme or a public policy in India either allowing a victim of crime to seek compensation
from the offender and/or state or to participate, as a matter of right, in the criminal justice
process. However, a careful reading of provisions of Code of Criminal Procedure, 1973 as
amended on date and that of Probation of Offender’s Act, 1958 reveals that a few sections
contained therein can be invoked to provide justice and compensation to the victims of crime.

PROVISIONS IN INDIA
There is no comprehensive legislation providing for compensation by the State
or by the offender to the victims of crime. The Criminal Procedure Code is the first and
may be the oldest legislation in India to deal with the subject of compensation to the victims
of crime. The provisions of Criminal Procedure Code concerning victim compensation
occupy a prominent place in the progressive development of the law relating to victim
compensation through judicial approach. The provisions for compensation envisaged in the
Code of Criminal Procedure, 1973 are contained in Sections 357, 358, 359 and 357-A of the
Code. Some other provisions on the subject matter are under Sections 237 and 250 of the
Criminal Procedure Code, 1973.

POWER OF COURT TO PAY COMPENSATION ON

CONVICTION
Specifically, Section 357 126of the Criminal Procedure Code, 1973 enables the
passing of an order of compensation by the trial Court, the Appellate Court and the High

126 357.Order to pay compensation:-(1) When a Court imposes a sentence of fine or a sentence (including a sentence of
death) of which fine forms a part. the Court may, when passing judgment, order the whole or any part of the fine recovered
to be applied-
(a) in defraying the expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the
opinion of the Court, recoverable by such person in a Civil Court;
(c) when any person is convicted of any offence for having caused the death of another person or of having abetted the
commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855, (13 of
1855) entitled to recover damages from the person sentenced for the loss resulting to them from such death:(d) when any
Court or Court of Session in revision at the time of passing of judgment, out of fine imposed
by the Court under the following circumstances :
Firstly,
a. to the complainant, for meeting expenses properly incurred in the prosecution;
b. to a person, who has suffered loss or injury by the offender, when he can
recover compensation in Civil Court;
c. to a person entitled to recover damages under the Fatal Accidents when there
is a conviction for causing death or abetment thereof;
d. to a bona fide purchaser of property, which has become the subject of criminal
misappropriation, criminal breach of trust, cheating, or receiving , disposing
of stolen property and which is ordered to be restored to its rightful owner.
Secondly, where there is an appeal against any sentence or fine, no
compensation shall be paid till the appeal period lapses.
Thirdly, in all cases where no fine is imposed, the Court may order the
payment of compensation to the victims of crime who have suffered any loss or injury.
Whenever compensation is paid under Section 357 it shall be taken into account by any Civil
Court which subsequently takes up the civil suit claiming compensation.
Section 357 visualizes a wide range of situations under which compensation may be ordered
to be paid to the victims of crime. Under the section, the categories of victims which become
entitled to claim compensation are the complainant victim or any person who has suffered
loss or injury because of the offence. He can recover compensation in Civil Courts under the
Fatal Accidents Act, 1855 and when there is a conviction causing death or abetment thereof
or a bona fide purchaser of property, etc. can claim compensation. But this Section 357 of
Code of Criminal Procedure does not provide interim or immediate compensation to the
victim on motor accidents claim cases Considering Section 357, sub-section (1) of the Code
empowers a Criminal Court to award the whole or any portion of the fine recovered for the
purposes mentioned in clauses (a) to (d).

person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or
of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or
having reason to believe the same to be stolen, in compensating any bonafide purchaser of such property for the loss of
the same if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for
presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. .
(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the
accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has
suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when
exercising its powers of revision.
(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into
account any sum paid or recovered as compensation under this section.
 Further clauses (a) and (d) in essence, deal with defraying pecuniary losses
incurred by a person in prosecution127 and by a bona fide purchaser of stolen goods,
respectively. Clause (b) and clause (c), on the other hand, respectively deals with re-
compensating 'any loss' (pecuniary or otherwise) or injury caused by any offence128 and by
death. In order to claim compensation under clause (b) it is necessary to show that person
suffered a loss. 'Loss' means that can be compensated in money including some substantial
detriment from a worldly point of view and loss of support and even loss of mere gratuitous
liberty while the word 'injury' has been given a very wide meaning and connection in Indian
Penal Code, 1860.
The compensation under this section not only corresponds to damages
awarded in civil proceedings but is also to be taken into consideration by a Civil Court in
determining the quantum of damages in a subsequent civil suit relating to the same matter.
Section 357 (3) deals with the cases in "which fine does not form the part" of a
sentence. In such cases the court is empowered to "order the accused person to pay, by way
of compensation, such amount as may be specified" by the court in its order. Such specified
amount is to be paid to the person who has suffered any loss or injury by reason of the act for
which the accused person has been so sentenced.129
Are the criminal courts jurisdictionally competent to impose a sentence of
imprisonment in default of a direction to pay compensation under Section 357(3) Cr.P.C ?
What is the correct law on the point? These two questions were discussed by the High Court
of Kerala in C. Ganga Case130 and the Court held that there can be no doubt whatsoever that
a direction for payment of compensation to the victim can be issued by a Magistrate under
Section 357(3) Cr.P.C. It is also well settled by now that such a direction can be issued for
payment of amounts beyond the maximum fine which a Magistrate can impose under Section
29 of the Cr.P.C. This aspect is laid to rest by the decision in Bhaskaran case131 by the
Supreme Court observing so in paragraph 30 and 31 of the said decision. The Supreme Court
observed in paragraph 30,
"It is true, if a judicial magistrate of first class were to order compensation
to be paid to the complainant from out of the fine realized the complainant will be the loser

127 See, Code of Criminal Procedure, 1973, Section 359 also empowers a Court, in its discretion to order a convict in
addition the penalty imposed upon him, to pay reasonable costs, in whole or in part, incurred by the complainant in
prosecution of a non-cognizable offence.
128 Ibid; Sec. 358 also empowers a Magistrate; in his discretion to award a compensation, not exceeding Rs. 1000 (subs. by

Act 25 of 2005, w.e.f. 23-6-2006) to an accused from a complainant for loss of time and expenses incurred on account of
being groundlessly arrested at the instance of the complainant.
129 'Global perspectives of victimology', S.P. Singh Makkar (ed), 'Prospectives of Victimology in India', ABS Publication, 1st

Ed. 1993, p. 153.

130 C. Ganga VsLakshmiAmmal and Anr, 2008,Cri.L.J., 3359.
131
Bhaskaran v. Balan, 1999(3) KLT 440 (SC).
when the cheque amount exceeded the said limit. In such a case a complainant would get
only the maximum amount of Rupees five thousand."

FURTHER PARAGRAPH 31, IT OBSERVED:

"However, the magistrate in such cases can alleviate the grievance' of the
complainant by making resort to Section 357(3) of the Code. It is well to remember that
this Court has emphasized the need for making liberal use of that provision (Hari
Krishnan and State of Haryana v. Sukhbit Singh and Ors. JT 1988 (3) SC 11).
No limit is mentioned in the subsection and therefore, a magistrate can award
any sum as compensation. Of course while fixing the quantum of such compensation the
Magistrate has to consider what would be the reasonable amount of compensation payable
to the complainant. Thus, even if the trial was before a court of magistrate of first class in
respect of a cheque which covers an amount exceeding Rs. 5,000/- the court has power to
award compensation to be paid to the complainant. .However, features of the court's power
under Section 357 are noteworthy. This power to make an order to pay compensation is: a
discretionary power vested in the criminal court. This in no way is to be understood as
creating any right of victim to claim and receive any compensation. This means that if the
victim is fortunate to have a compensation-oriented and compensation favouring court then
he may only hope for such compensation order. At the most circumstances justifying such an
order can be brought to the notice of the court persuading it to exercise its compensation
discretion.”
Keeping this in view, Section 357(3) of Criminal Procedure Code has not only
recognized the philosophy of the compensation simplicitor to the victims of crime even in the
situation where no sentence of fine has been imposed but it also added a new dimension to
the idea of re-compensating them. Prior to inclusion of this clause no compensation could be
awarded unless a substantive sentence of fine was passed and then too this was limited only
to the extent of the fine actually realized. So it can be for any amount and not limited to the
amount of fine imposed or recovered.

COMPENSATION TO THE PERSONS

GROUNDLESSLY ARRESTED
132
Thus, Section 358 visualizes when any person has been caused to be
arrested by the police, at the instigation of a person and the Magistrate finds that such arrest

132 358. Compensation to persons groundlessly arrested

was caused on insufficient grounds, than he may order a sum of rupees not exceeding one
thousand133 to be paid to the victim of such arrest. In these instances the State is to proceed
against the erring officials and release the amount awarded as compensation.
Further, it is pertinent to note that Section 358 obviously aims at protecting the
constitutionally guaranteed personal liberty of the person under Article 21 of the Constitution
of India and also save them from illegal and arbitrary arrest, even without reference to any
accusations or charge leveled against such person. Thus, this is definitely, important piece of
legislation against groundless arrest by the police which upholds the rule of law by having
democratic values.134

ORDER TO PAY COSTS IN NON-COGNIZABLE

CASES
Under Section 359 of the Code when any person has been convicted in non-
cognizable case the Court may order for the refund of expenses incurred by the complaint in
launching the prosecution. So under Section 359, the complaint victim is entitled to claim
only the expenses incurred in the launching of the prosecution for loss or injury suffered by
him.

COMPENSATION FOR ACCUSATION WITHOUT

REASONABLE CAUSE
Similarly, Section 250 of the Code also lays down special provision for the
payment of compensation to the accused person in cases where he is discharged or acquitted
as a result of finding no reasonable ground existing for launching such prosecution. Section
250 of the Code of Criminal Procedure, thus, covers only those specific cases where case has
been instituted upon a complainant or upon the information given to police or to the
Magistrate accusing some person of having committed certain act or offence triable by a
Magistrate and the case should have been ended in an acquittal when the Magistrate trying

(1) Whenever any person causes a police officer to arrest another person, if it appears to the Magistrate by whom the case is
heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not
exceeding one hundred rupees, to be paid by the person so causing the arrest to the person so arrested, for his loss of time
and expenses in the matter, as the Magistrate thinks fit.
(2) In such cases, if more persons than one are arrested, the Magistrate may, in like manner, award to each of them such
compensation, not exceeding one hundred rupees, as such Magistrate thinks fit
(3) All compensation awarded under this section may be recovered as if it were a fine, and if it cannot be so recovered, the
person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the
Magistrate directs, unless such sum is sooner paid.
133 Subs. By act 25 of 2005, w.e.f. 23.6.2006, earlier it was 100 Rs. only
134 Mundrathi, Sammaiah, Law on Compensation to Victims of Crime and Abuse of Power,

(2002), p. 75.
the case should have found that complaint or the information given was false and either
frivolous then the Magistrate may order the informant to pay compensation. Under Section
135
250 the court has power to award the compensation to the person against whom complaint
has been filed without any reasonable cause. The section further authorizes the court to award
simple imprisonment in default of paying the compensation. But under this section only the
magistrate who has heard the case has been empowered to order compensation; no other
magistrate or the court of appeal can pass an order of compensation under Sec.250.136
The Court held in Nand Kumar case137 that, "The view has emerged in all
the High Courts in the country that the same magistrate alone can initiate action and pass
the final order ..... It would be thus worth-while to preserve the interpretation of the
provision which would not disturb the unanimous understanding of the High Court’s on
the subject." However this section does not restrict other remedies available under criminal
and civil laws. It is important to mention that the provisions of this section apply to
summons-cases as well as to warrant-cases.
Further, Section 237 of the Code lays down that the Court of Session taking
cognizance of an offence under sub-section (2) of Section 199 shall try the case in accordance
with the procedure for the trial of warrant cases instituted otherwise than on a police report
before a Court of Magistrate. This Section lays down the provision of the payment of
compensation to victims of crime by the Sessions Court in the cases involving the defamation
of a person. The maximum amount of compensation that the Court may award under this
Section is Rs. 1000/-.

135
250. Compensation for accusation without reasonable cause, (1) If, in any case instituted upon complaint or upon
information given to a police officer or to a Magistrate, one or more persons is or are accused before a Magistrate of
any offence triable by a Magistrate, and the Magistrate by whom the case is heard discharges or acquits all or any of
the accused, and is of opinion that there was no reasonable ground for making the accusation against them or any of
them, the Magistrate may, by his order of discharge or acquittal, if the person upon whose complaint or information
the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to
such accused or to each or any of such accused when there are more than one; or, if such person is not present, direct
the issue of a summons to him to appear and show cause as aforesaid.
(2) The Magistrate shall record and consider any cause which such complainant or informant may show, and if
he is satisfied that there was no reasonable ground for making the accusation, may, for reasons to be recorded, make
an order that compensation to such amount, not exceeding the amount of fine he is empowered to .impose, as he may
determine, be paid by such complainant or informant to the accused or to each or any of them.
(3) The Magistrate may, by the order directing payment of the compensation under sub- section (2),further order
that, in default of payment, the person ordered to pay such compensation shall undergo simple imprisonment for a
period not exceeding thirty days.
(4) ………
(5) No person who has been directed to pay compensation under this section shall, by reason of such order, be
exempted from any civil or criminal liability in respect of the complaint made or information given by him: Provided
that any amount paid to an accused person under this section shall be taken into account in awarding compensation to
such person in any subsequent civil suit relating to the same matter.
(6) A complainant or informant who has been ordered under sub-section' (2) by a Magistrate of the second class
to pay compensation exceeding one hundred rupees, may appeal from the order, as if such complainant or informant
had been convicted on a trial held by such Magistrate.
(7) ……… .
(8) The provisions of this section apply to summons-cases as well as to warrant-cases.
136
Bansidhar Pande Vs. Chunni Lal, A.I.R. 1927 All 744.
137
Nand Kumar Vs. Jananatli Laxman Kushalkar, (1998) 2 SCC 355.
 Under Section 237 to award the compensation the accused must have been
discharged or acquitted on the ground that no reasonable cause for making the acquisition
against the accused exists. It is clear from the observations that the Court is empowered to
award compensation to the victim or his dependents out of the fine imposed upon the
offender. After considering all the provisions of the Code it is; clear that Section 357(3)
confer wider powers on the Court to award compensation irrespective of the fine amount
imposed. Further, it is clear from the above provision which at least visualize a minimum
scheme of compensation, for the victims. If the provision of Section 357(3) is excluded then
the purpose of the provision, become futile in case the offender is unable to pay the fine
imposed. Therefore, in most of the cases, where compensation is awarded, it remains unreal.

RECENT AMENDMENT IN CR P C
After section 357 of the principal Act, Section 357A has been inserted
providing for Victim Compensation Scheme16 —

VICTIM COMPENSATION SCHEME

357A. Victim Compensation Scheme
1. Every State Government in co-ordination with the Central Government shall
prepare a scheme for providing funds for the purpose of compensation to the
victim or his dependents who have suffered loss or injury as a result of the
crime and who require rehabilitation.
2. Whenever a recommendation is made by the Court for compensation, the
District Legal Service Authority or the State Legal Service Authority, as the
case may be, shall decide the quantum of compensation to be awarded under
the scheme referred to in sub-section (1).
3. If the trial Court, at the conclusion of the trial, is satisfied, that the
compensation awarded under section 357 is not adequate for such
rehabilitation, or where the cases end in acquittal or discharge and the victim
has to be rehabilitated, it may make recommendation for compensation.
4. Where the offender is not traced or identified, but the victim is identified, and
where no trial takes place, the victim or his dependents may make an
application to the State or the District Legal Services Authority for award of
compensation.
 5. On receipt of such recommendations or on the application under sub-section
(4), the State or the District Legal Services Authority shall, after due enquiry
award adequate compensation by completing the enquiry within two months.
6. The State or the District Legal Services Authority, as the case may be, to
alleviate the suffering of the victim, may order for immediate first-aid facility
or medical benefits to be made available free of cost on the certificate of the
police officer not below the rank of the officer in charge of the police station
or a Magistrate of the area concerned, or any other interim relief as the
appropriate authority deems fit.

CRITICAL APPRAISAL OF AMENDMENT

Section 357(A) has laid down the foundation-stone of modern compensatory
jurisprudence because the other provisions are inadequate and have failed to fulfill the
demand of time. This new Section envisages the new vision. Now the State Governments
with the co-operation of the Central Government shall provide the funds so that adequate
compensation can be given to the victims. In another words, by this amendment the State has
assumed the responsibility to give the compensation to the victims of crime. In this section,
victim includes the dependents of victims and all those who injured or suffered the loss.
Now, the courts have been given the role of only recommendation for
compensation and it is the State or the District Legal Services Authority which will
decide the quantum of compensation. New section also deals with the situations where trial
results in acquittal or inadequate compensation under Section 357 have been awarded and
accused is untraceable or not identifiable. After getting recommendations or application,
State or the District Legal Services Authority will award due compensation by completing the
inquiry within 2 months. The State or the District Legal Services Authority may also order
immediate first-aid facility or medical benefits free of cost on either certificate of police
officer not below than SHO or concerned magistrate and any other interim relief as the
appropriate authority considers just in light of circumstances of each case. Therefore we can
say that the provisions of said Section 357 (A) are noble and grand. It will be interesting to
see that how our higher courts will interpret these provisions and how the States
Governments will implement them in the real spirit and zeal. It is humbly
submitted that if these provisions are truly implemented then it would be a new milestone in
advancement of the cause of 'forgotten victims.'
In Criminal Procedure Code, though provisions have been made in Section
357 to provide compensation to victims, who have suffered loss or harms as consequence of
commission of offence. But, what has been provided in Indian Law, as a compensatory
measure to victims of crimes, is not enough and this aspect needs to be reviewed by the
legislature to frame or enact necessary law, so as to sufficiently compensate to victims of
crimes and to provide safeguards to victims of crimes, besides compensating him in monetary
terms. It is also pertinent to note that by virtue of Section 431 138, and provisions of Section
421139of Cr.P.C. are equally applicable to the recovery of 'specified amount' of compensation
awarded under Section 357 (3). Section 431 empowers a criminal court to recover 'any
money (other than a fine) payable by virtue of any order made under the Cr.P.C. as if it were
a fine if a 'method' for its 'recovery' is not expressly provided for in the Cr.P.C.

COMPENSATION UNDER PROBATION OF

OFFENDERS ACT, 1958
The whole object of the Probation of Offenders Act,1958 is to prevent
conversion of youthful offender into obdurate criminals of matured age, in case they are
sentenced to undergo substantive imprisonment in jail. The Probation of Offenders Act
enables the Court, directing release of an offender under Section 3 and Section 4 in its
discretion to grant 'reasonable compensation' to any person for loss or injury caused to him by
commission of the offence and costs of the proceedings._

138
431 Money ordered to be paid recoverable as a finer- Any money (other than a fine) payable by virtue of any order
made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be
recoverable as ifit were a fine: Provided that section 421 shall, in its application to an order under section 359, by
virtue of this section, be construed as if in the proviso to sub-section (1) of section 421, after the words and figures
"under section 357", the words and figures "or an order for payment of costs under section 359" had been inserted.
139
421.Warrant for levy of fine (1) When an offender has been sentenced to pay a fine, the Court passing the sentence
may take action for the recovery of the fine in either or both of the following ways, that is to say, it may-
(a) issue a warrant for the levy of the amount by attachment and 'sale of any
Movable property belonging to the offender; ..
(b) issue a warrant to the Collector of the district, authorising him to realize the amount as arrears of land revenue
from the movable or immovable property, or both, of The defaulter: .
Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if
such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for
special reasons to be recorded in writing, it considers it necessary to do so, or unless it has made an order for the
payment of expenses of compensation out of the fine under section 357.
(2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1)
are to be executed, and for the summary determination of any claims made by any person other than the offender in
respect of any property attached in execution of such warrant.
(3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the
amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate
issued under such law:
Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.
sub-section 5(1) lays down powers of court to require
released offenders to pay compensation and costs as
under:
(1) The Court directing the release of an offender under Section 3 or Section 4,
may, if it thinks fit, make at the same time a further order directing him to pay—
a) Such compensation as the Court thinks reasonable for loss or injury caused to
any person by the commission of the offence; and
b) Such costs of the proceedings as the Court thinks reasonable.
(2) The amount ordered to be paid under sub-section (1) may be recovered as
fine in accordance with the provisions of Sections 386 and 387 of the Code.
(3) A civil Court trying any suit, arising out of the same matter for which the
offender is prosecuted, shall take into account any amount paid or recovered as compensation
under subsection (1) in awarding damages.
After considering the language of the Section an inference can be drawn that
the provisions are inadequate from the victim's point of view. The award of compensation
and costs is at the discretion of the Court. Similarly, under Probation of Offenders Act, 1958
140
the Court's discretion plays vital role when act is both a tort and a crime." The dependent
may be paid compensation from within the fine amount which a Magistrate may impose on
the accused under Section 357 of the Criminal Procedure Code.
It is amply clear that power to award compensation vests only with the Court
releasing an offender and is purely within its discretion. Even the Appellate Court or High
Court cannot interfere unless it is of the view that such power has been exercised capriciously
and unreasonably.141
The most significant aspect which is worth mentioning is that although the
Probation of Offenders Act has self-contained provision for award of compensation to the
victim who has suffered at the hands of the offender, provisions under Probation of Offenders
Act, 1958 are very rarely pressed into by the trial Courts. As a general notion, it is agitated on
the issue of releasing the offender straightway without grant of any compensation to the
victim of the crime. Unfortunately in our legal system, in quite large number of cases, the
victim and the aggrieved party who has suffered mental and physical agony is left in the lurch
and has to reconcile to his fate as law is inadequate to protect him.

140
Nanak Singh v. State of Punjab. 1983 Cri LJ 232 (P&H)
141
Rajeswari Prasad v. R. B. Gupta. AIR 1961 Pat 19.
 CHAPTER V
JUDICIAL RESPONSE TOWARDS PAYMENT OF
COMPENSATION
The Supreme Court in Sarwan Singh Vs. State of Punjab142, has elaborately
highlighted the objectives and guidelines for the exercise the courts' powers under the Section
357. The Court articulated its object as to provide compensation payable to the persons who
are entitled to recover damages from the person sentenced whether or not fine forms the part
of it. In awarding compensation it is necessary for the court to decide whether the case is fit
one in which compensation has to be awarded. The Supreme Court clarified that it was the
duty of the court to take into account the nature of the crime, the injury suffered, the justness
of the claim of compensation, the capacity of the accused to pay compensation and other
relevant circumstances in fixing the amount of fine or compensation. If the accused is not
able to pay the fine or compensation, imposing a default sentence for Jon- payment of fine
would not achieve the object. If the accused is in position to pay the compensation, there
could be no reason for the court for not directing such compensation. The Court further went
on. When a person who caused injury due to negligence or has made vicariously liable is
bound to pay compensation, it is appropriate to direct payment by the accused who is guilty
of causing an injury with necessary mens rea to pay compensation for the person who has
suffered injury.
Apart from invoking Section 357 of the Cr.P.C. the victim may approach the
High Court under Section 482,143 of Cr.P.C. to claim compensation, which empowers a
higher court to exercise its inherent power in the interest of justice. However, the Supreme
Court has not favored invoking of such a power in view of existing statutory provisions under
section 357 of Cr.P.C. In Palaniappa GounderVs. State of Tamil Nadu144 the Court
observed,
"If there is an express provision in a statute governing a particular subject-
matter, there is no scope for invoking or exercising the inherent powers of the court
because the court ought to apply the provisions of statute. Hence, the application made by
the heirs of the deceased for compensation could not have been made under Section 482

142
AI.R. 1978 S.C. 1525.
143
482.Saving of inherent powers of High Court:- Nothing in this Code shall be deemed to limit or affect the inherent
powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to
prevent abuse of the process of any Court or otherwise to secure the ends of justice.
144
(1977) 2 SCC 634.
since Section 357 expressly confers powers on the court to pass an order for payment of
compensation."
Nevertheless Supreme Court in Bodhisattwa case145, on its own awarded
interim compensation to the respondent, a rape victim, while exercising its inherent
power. In this case accused, a lecturer had married the victim, his student by putting
vermilion on her forehead before God and accepted her his wife and impregnated her twice
resulting in abortion on both the occasions, and later refused to recognized her as his wife.
Therefore Supreme Court directed the petitioner to pay compensation of Rs. 1000 every
month to the respondent as interim compensation during the pendency of criminal case
and also directed the petitioner to pay arrears of compensation at the same rate from the date
on which the complainant was filed till date. Relying on this case Supreme Court in Delhi
146
Domestic case observed:"If the court trying an offence of rape has jurisdiction to award
the compensation at the final stage, there is no reason to deny to the Court the right to award
the interim compensation. This jurisdiction to pay interim compensation shall be treated
to part of the overall jurisdiction of the Courts trying the offence of rape which is an
offence against the basic human rights and also the fundamental right of personal life
and liberty. Unfortunately, a woman in our country, belongs to a class or group of society
who are in a disadvantaged position on account of several social barriers and impediments
and have therefore, been the victim of trying at the hands of men with whom they, fortunately
under Constitution enjoy equal rights."
It is noted that courts have used compensation as a mitigating factor and
reduced the quantum of punishment accordingly.
The Supreme Court has laid down many such instances of a lesser sentence
and a heavy fine would serve the ends of justice. While assessing the fine, a very clear and
correct enquiry should be done as it should not be over oppressive such as the situation in
which a poor farmer has to sell his lands and his wife's jewellery to pay up and at the same
time, it should not be disproportionate such as in a case where the accused is a rich
businessman or a white collared offender in whose case, a very heavy fine is the only
meaningful punishment' as otherwise, the accused will look at it as a huge joke. Finally, we
direct that in the last category of cases, the Courts should not be shy or hesitant in imposing
very heavy fines where the circumstances warrant but in those instances while directing the
payment of compensation the In general principles relating to investment etc., for the long
term welfare shall be done in mind;147

145
BodhisattwaGautamVs. SubhraChakraborty, (1996) 1 see 490.
146
Delhi Domestic Working Women's Forum.Vs. U.O.I. (1995) 1 SCC 14.
147
State of KernatahaVs. Thammappa, 2004 Cri.L.J. 1968 (Karnt.),
 However, while reducing the sentence High Court imposed a fine of Rs.
20,000 on the accused and directed that out of the fine, if realized, a sum of Rs. 15,000
should be paid to these on and daughters of the deceased Under Section 357 (1) (C) of the
code. This order came to be passed on an application filed by the son and daughters of the
deceased praying that the accused be asked to pay them, as heirs of the deceased,
compensation of a sum of Rs. 40,000 for the death of their father. Though the application
filed was one Under Section 482 of the Code, Court said that it could be treated that one
Under Section 357 of the Code which provisions specifically dealt with such a case. Though
upholding the order of the High Court in imposing fine and directing payment of
compensation to heirs of the deceased. The Supreme Court reduced the sentence of fine to
Rs. 15,000 and directed that the fine so recovered shall be paid to the heirs of the deceased.
The Court said that provisions of clauses (a), (b) and (d) of Section 357 were inapplicable and
Clause (c) of Section 357 (1) was relevant. This Court, however, said that though it was
legitimate to sentence the accused to fine as well "but legitimacy is not to be confused with
propriety and the fact that the Court possesses a certain power does not mean that it must
always exercise it", It said that the power to combine sentence of death with sentence of fine
is sparingly exercised because the sentence of death is an extreme penalty to impose and
adding to that grave penalty a sentence of fine is hardly calculated to serve any social
purpose. The approach of this Court in the present day context needs further thought.
However this observation of Court is to be confined to a case where accused has been
sentenced to death. '
148
In Hari Singh case Supreme Court took a different stance. It called upon.
All the courts to liberalize its power under Section 357 of the Code. It said that power of the
Courts to award compensation to victims under Section 357, while passing judgment of
conviction was not ancillary to other sentences but in addition thereto and that this power was
intended to do something to reassure the victim that he or she was not forgotten in the
criminal justice system. In this case accused was convicted under Sections 325, 148 and 149
IPC. Power of speech of the victim was impaired permanently. High Court granted
compensation of Rs. 2500 which the Court said would be payable by each of the accused
having regard to the nature of injuries suffered by the victim. The Court found that accused
had means and ability and were also willing to bear the additional financial burden. The
award of compensation was enhanced to Rs. 50,000.Another aspect is that in given low rates
of convictions in criminal cases (less than 10 percent), the inordinate delay in the accused
person, it is preposterous to say that a victim compensation really operates in administration

148
Hari Singh VsSuhbir Singh and Ors.,MANU/SC/Ol8a/1988.
of justice in India today. It may not be exaggeration to say that in practice not even one
percent of deserving victims get compensation through criminal courts today.149
150
In Guruswamy case Supreme Court remarked that in case of murder it is
only fair that proper compensation should be provided for the dependents of the deceased. In
the instant case the accused was convicted on a charge of murder. The victims were his father
and brother. The accused was found guilty in two Courts under Section 302, Indian Penal
Code and was sentenced to death by each Court. The conviction of the appellant was
confirmed by the Apex Court but the sentence was reduced to imprisonment for life Supreme
Court also awarded Rs. 10.000 as compensation to the widow and the minor children of the
deceased. In this case five accused armed with weapons caused injuries to the deceased
which resulted in his death due to dispute over water among brothers in a family. The
Supreme Court imposed a fine of Rs. 3500 on each of the accused which was to be paid to the
widow of the deceased as compensation.
151
In Swaran Singh case , the Supreme Court treated compensation as an
alternative to imprisonment. On special leave petition, it upheld the conviction but reduced
the sentence to the period already undergone (one year) by the accused. It directed accused to
pay the widow of the deceased a fine of Rs. 20,000 by way of compensation under Section
357 of the Cr.P.C. The Apex Court's decisions may be viewed as a liberal interpretation of
the law in order to aid the cause of the victim. Although the quantum of compensation
ordered by the Court is paltry in relation to the gravity of the offence, nonetheless the
decision is in line with the growing trend of incorporating the concept of paying
compensation to victims in the course of criminal proceedings. It may be painful for the
offender to pay compensation, but it would be equally painful if the victim is directed to
approach the civil court for compensation.152
In Working Women's Forum case153 Supreme Court while considering the
plight of victim of offence and held, “In our efforts to look after and protect the human
rights of the convict we cannot forget the victim or his family in case of his death or who is
otherwise incapacitated to earn his livelihood because of criminal act of the convict. The
victim is certainly entitled to reparation, restitution and safeguards of his rights. Criminal
justice would look hollow if justice is not done to the victim of the crime. Subject of

149
Prof N.R. MadhavaMenon, 'Victim Compensation Law and Criminal Justice: A Plea for a Victim-Orientation in
Criminal Justice', "Criminal Justice - A Human Rights Perspective of the Criminal Justice Process in India", Dr. K.L
Vibhute(ed. l. Eastern Book Company Lucknow, p. 364.
150
Guruswamy Vs. Satateof Tamil Nadu, (1979) 3 SCC 797.
151
Swam Singh Vs. State of U'P, (1998) 4 SCC 75.
152
K.D. Gaur, 'Justice to Victims of Crime: A Human Rights Approach', "Criminal Justice- A Human Rights
Perspective of the Criminal Justice Process in India", Dr. K.I. Vibhute(ed.), Eastern Book Company Lucknow, p.356.
153
(1995) 1 SCC 14
victimology is gaining ground while we are also concerned with the rights of the prisoners
and prison reforms. A victim of crime cannot be a 'forgotten man' in the criminal justice
system. It is he who has suffered the most. His family is ruined, particularly in case of
death and other bodily injury. This is apart from the factors like loss of reputation,
humiliation, etc. An honour which is lost or life which is snuffed out cannot be
recompensed but then monetary compensation will at least provide some solace."
The Supreme Court of India in State of Gujarat case vs Hon’ble HC,
154
Gujarat recommended making effective laws so that the compensation to victim may
become a reality. The Court has suggested in these wordings, "It is a constructive thinking for
the State to make appropriate law for diverting some portion of the income earned by the
prisoner when he is in jail to be paid to deserving victims. In the absence of any law for that
purpose we are prevented from issuing a direction to set apart any portion of the prisoner's
earned wages for payment to the victims because of the interdict contained in Article SOOA
of the Constitution. Hence we suggest that the State concerned may bring about legislation
for that purpose." Therefore the Court recommended States Governments to make the
necessary legislation in this regard, "We recommend to the State concerned to make law or
setting apart a portion of the wages earned by the prisoners to be paid as compensation to
deserving victims of the offence the commission of which entailed the sentence of
imprisonment to the prisoner, either directly or through a common fund to be created for this
purpose or in any other feasible mode."
In Raschhpal Singh Case155104however the Supreme Court maintained the
order of High Court but seeing the circumstances of the case it reduced the heavy
compensation awarded to the victim. The present case occurred due to a civil dispute pending
between the deceased and the appellant. The deceased obtained an interim order pertaining to
the civil dispute. This in turn led to a fight between the deceased and the appellants. The first
appellant armed with a gun and the second appellant armed with arifle along with three other
accused attacked the deceased. The first and second appellant fired shots at the two deceased
and they received two bullet injuries each and died on the spot. The Sessions Judge after
considering the materials placed before him, found the appellants guilty and convicted and
sentenced the first two appellants to death for an offence under Section 302 IPC and the other
accused to life imprisonment. They were also sentenced to varying terms of imprisonment
with fine with regard to other offences. Against this order the accused preferred an appeal
challenging the convictions and sentences. The 'complainant separately preferred a Criminal
Revision Petition praying for compensation under Section 357 Cr.P.C. The High Court

154
State of Gujarat and AnrVsHon'bleHigh Court of Gujarat, A.I.R.,1998,S.C., 3164.
155
Rachhpal Singh v. State of Punjab, 2002 Cri. L.J. 3540 S.C.
concurred with the findings of the Sessions Court on the conviction imposed but held that the
imposition of capital punishment was uncalled for as thecase was not one of the rarest of rare
case and hence their sentence was reduced to imprisonment for life.
Considering the revision petition, the High Court held that it was a fit
case for exercising the jurisdiction under Section 357 Cr.P.C. and directed each of the
appellant to pay a sum of Rs. 2,00,000, totaling Rs. 4,00,000 and in default, was to
undergo a sentence of five years rigorous imprisonment. Against this order the appellants
filed an appeal before the apex court. The Court after hearing the learned counsels, held that
there was no ground to differ from the reasoning of the court below and upheld the conviction
and sentence. With regard to the award of compensation under Section 357, the Court held
that the High Court in' the instant case did not have sufficient material before it to correctly
assess the capacity of the accused to pay compensation but keeping the object of the Section,
it is a fit case in which the court was justified in invoking Section 357. The court after having
gone through the records and materials found that the appellants were reasonably affluent.
Hence, the appellants were capable of paying at least Rs.l, 00,000 'per head as compensation.
Therefore, the order of the High Court was modified by reducing the compensation payable
from Rs.2, 00,000 each to Rs.l, 00,000 each.
In Meja Singh case156105, our High Court awarded the interim compensation
Rs. 25,000 for illegal arrest. As the illegal arrest was done by Kashmir Sing, SI of Police
without any authorization, not in discharge of sovereign function of State and not in
discharge of official duty, therefore the Government directed to pay Rs. 25,000/- to
Meja Singh, the father of detenue.
In HariKrishnan Case157 the Supreme Court recommended that all criminal
courts should exercise this power (357) liberally so as to meet the ends of justice, by
cautioning that the amount of compensation to be awarded must be reasonable". The court
held that "in order that collective may not looses faith in criminal adjudication system and
the concept of deterrence is to be kept at a remote corner we are disposed to enhance the
amount of compensation to Rs.30000 / -".
The court referred to the case of Sarup Singh v. State of Haryana (AIR 1995
SC 2452), wherein the apex court while reducing the sentence for the period already
undergone by the accused under Section 304 IPC, directed to pay a sum of Rs. 20,000 by way
of compensation. The court further emphasized that the amount of compensation was
enhanced taking into consideration the gravity of the injury, the strata to which the accused
belongs, the milieu in which the crime has taken place and further keeping in view the cry of

156
Meja Singh Vs. SHO Police Station, Zira 1991, Ace C.J. 439(Punj&Har).
157
Hari Krishnan Case and the State of Haryana v. Sukbir Singh and others, AIR 1988 SC 2127.
the society for the victims at large. The entire amount shall be paid to the injured· on proper
identification. The amount shall be deposited before the trial court within four months failing
which the appellant shall have to undergo further rigorous imprisonment of four years. The
sentence of conviction of the appellant under Section 307 IPC is maintained with
modification in the sentence.
In Manjappa case,158107the appellant-accused had voluntarily caused simple
hurt to the complainant. The appellant was also said to have assaulted the complainant with a
stone resulting in grievous injuries to the complainant. Moreover, the appellant accused
intentionally insulted the complainant by using abusive language thereby provoking him,
knowingfully well that such provocation would make the complainant to break public peace
or to commit other offences. The charge was framed against the accused for offences
punishable under Sections 323, 325 and 504 of the IPC. The' trial court, after appreciating the
prosecution evidence, by its judgment, dated 8 March 1999 held that charges against accused
were proved under Sections 323 and 325 I.P.C. except under Section 504. So far as sentence,
was concerned, the trial court awarded simple imprisonment for three months and a fine of
Rs. 500, in default to undergo simple imprisonment for fifteen days for the offence
punishable under Section 323 I.P.C. He was also ordered simple imprisonment for one year
and fine of Rs. 3000, in default to undergo simple imprisonment for three months for the
offence punishable under Section 325 IPC. The court also ordered that out of the fine amount
so received, the injured-complainant will be paid compensation of Rs. 2000 under Section
357(1) (b) of the Cr.P.C. of 1973. Against this order of conviction and sentence, the appellant
preferred an appeal in the court of Sessions Judge. The Sessions Judge, after considering the
evidence and hearing the arguments, acquitted the appellant for the offence punishable under
Section 323 IPC and set aside the order of conviction and sentence. He, however, confirmed
the order of conviction of the accused for the offence punishable under Section 325 IPC. The
appellate court, however, was of the view that it was a fit case to reduce sentence of simple
imprisonment from one year to six months. The appellate court also directed the accused to
pay compensation of Rs. 3000 to the complainant who had sustained grievous injuries,
independently of what the trial court awarded. The sentence of fine and compensation passed
by the trial court was confirmed. The appellant filed a revision petition in the High Court
challenging the order of the Court of Sessions. The High Court confirmed the order of
conviction. The High Court also partly allowed the revision by reducing sentence and
ordering the appellant to undergo simple imprisonment for one month and to pay a fine of Rs.
1000 in addition to what was ordered by the courts below. The appellant then approached the

158
Manjappav. State of Karnataka, 2007 SCCL COM 599.
Supreme Court against the order passed by the High Court. The Honourable Judges of the
Supreme Court in their order stated that "keeping in view all the facts and circumstances, in
our opinion, ends of justice would be met, if we order that the substantive sentence which
the appellant has already undergone is held sufficient. We are also of the view that it would
be appropriate if over and above the amount which the appellant herein has paid towards
fine and also towards compensation to the injured victim, the appellant is ordered to pay an
additional amount of Rs. l0000 / - to the complainant by way of compensation."159
In Nand Ballabh Pant v. State (Union Territory of Delhi)160 the appellant
was convicted under Section 304-A, Indian Penal Code, 1869. He was sentenced to two
months' rigorous imprisonment with a fine of Rs. 500/-. On appeal to the Apex Court, the
sentence was reduced to one month but the fine was enhanced to Rs. 1000/- with the direction
that the same be paid to the wife of the deceased by way of compensation.
In another case of Palaniappa Gounder v. State161 the Supreme Court has
expressed its disapproval of combining the punishment with the death sentence and even with
life imprisonment. In the said case the High Court had reduced the punishment of death
sentence to life imprisonment awarded by the trial Court and imposed a fine of Rs. 20,000/-
on the offender payable to the heirs of the deceased. The Supreme Court of India held that the
amount of compensation must not be excessive. The Court further stated that it is not proper
to first decide what compensation should be paid and then to impose fine which is higher than
the compensation.
In Prabhu Prasad Sah v. State of Bihar,162 the Apex Court imposed a fine of
Rs. 10,000/- on the offender to be paid to the heirs of the deceased. It was observed by the
Supreme Court that “criminal justice has many dimensions beyond conviction, sentence,
acquittal and innocence. The victim is not to be forgotten but must be restored to the extent
possible”.
In another case of Rattan Kumar v. Ranjit Singh163 understanding the plight
of the victim, declare the payment under insurance, and that he should also be paid out of
fine, as compensation bears no kinship and cannot be equated to insurance payments.
The major breakthrough in compensatory jurisprudence came through the
decision of the
Supreme Court in the case of Hari Kishan and State of Haryana v. Sukhbir
Singh & Ors 164
where it was recommended to all Courts in the country “to exercise the

159
Dilip S. Dahanukar V. Kotak Mahindra Co, Ltd. and Anr. 2007CriLJ2417
160
AIR 1977 SC 892 : 1977 Cri LJ 549.
161
AIR 1977 SC 1323 : 1977 Cri LJ 992.
162
AIR 1977 SC 704: See also Sukhdeo Singh v. State of Punjab, 1982 SCC (Cri) 467.
163
AIR 1983 P & H 160.
power of awarding compensation to the victims of offence in accordance with Section 357 of
Criminal Procedure Code, 1973, so as to achieve the goal of social justice…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 victim while passing judgment of conviction.
In addition to conviction, the Court may order the accused to pay some amount by way of
compensation to the victim who has suffered by the action of the accused. It may be noted
that this power of the Courts to award compensation is not ancillary to other sentences but it
is in addition thereto."165
The Court again observed that power in this area must be used liberally and
reasonably. It should not be excessive, having regard to the circumstances of the case like
motivation of the offence, pecuniary gain likely to have been made by the offender and his
means to pay the fine.166 The quantum of compensation maybe determined by taking into
account the nature of crime, the justness of claim by the victim and the ability of accused to
pay it.
In Babu Raghunath Naik v. Mrs. T. P. Fauna,167 Judicial Commissioner of
Goa held that the accused-appellant was ordered to be released under Section 3 of the
Probation of Offenders Act, as he had committed theft of coconut tree for the purpose of
using the same as sifters to build his cottage. While releasing the accused after due
admonition, in the circumstance of the offence and the character of the offender, the Judicial
Commissioner granted him the benefit of the Probation of Offenders Act, directing him to
pay a compensation of Rs. 50/- to the complainant.
In another case of Mangilal v. State of Madhya Pradesh168, incorporating the
principles of natural justice, Supreme Court observed that “a court is required to hear an
accused before fixing quantum of compensation.”

COMPENSATION AND WOMEN VICTIMS

The judiciary has actively responded to women victims of rape, as they need a
real, moral, ethical, legal and economic support to face the trauma. Some of the important
judgments where compensation was awarded to the victims of rape are-

164
AIR 1988 SC 2127.
165
Ibid. p. 2131, Also refer to Balaji v. State of U.P.. 1995 Cri LJ 3217.
166
Palaniappa Gounder v. Tamil Nadu. AIR 1977 SC 1323; Sarwan Singh v. Punjab, AIR 1978 SC
1525 : (1978) 4 SCC 111
167
AIR 1967 Goa 95 : 1967 Cri LJ 1005.
168
2004Cri LJ 880; AIR 2004 SC1280
 In Mukumda Martand Chatnis v. Madhuri169 for mudslinging and character
assassination of the wife, husband was find Rs. 1 lakh and Rs. 36,000 was to be paid as
compensation to the victim woman.
In Dudalure M.J. Cherian v. Union of India17034 the Supreme Court directed
the State of U.P. to pay Rs. 2,50,000 as compensation to each of the victims of rape.
In Rupaldeo Bajaj v K.P.S. Gill 171 Supreme Court fixed the liability of
offender and gave monetary relief to the victim as the alleged act of Mr. Gill slapping Mrs.
Bajaj on her bosom amounted to “outraging of her modesty”. It was further held that it was
not only an affront to the normal sense of feminine decency but also an affront to the dignity
of the lady.
In the Delhi Domestic Working Women’s Forum v. union of India172 case,
the Supreme Court of India had pronounced upon the need by the government to setup a
Criminal Injuries Compensation Board for rape victims within 6 months. The Supreme Court
had suggested that this board should give compensation whether or not a conviction takes
place. The Supreme Court explained the justification for this proposal as under-“It is
necessary, having regard to the Directive Principles contained under Article 38(I) of the
Constitution of India to setup Criminal Injuries Compensation Board. Rape victims
frequently incur substantial financial loss. Some, for example are too traumatized to continue
in employment.
Compensation for victims should be awarded by the court on conviction of the
offender and by the Criminal Injuries Compensation Board whether or not a conviction takes
place. The board will take into account pain suffering and shocks as well as loss of earnings
due to pregnancy and the expenses of the child but if it occurred as a result of rape...”
In Bodhisattwa Gautam v. Shubhra Chakraborty173, the supreme Court again
reiterated the above decision and further laid down that courts had arrived to award interim
compensation which should also be provided for in the scheme.
In Uttrakhand Sanghrash Samiti, Mussorie v. State of Uttar Pradesh and
others174 compensation to victims of the women molested and raped, the court viewed the
circumstances of these cases the same as in death and grievous hurt and held that of those
women who were molested and subjected to rape each shall be entitled to receive
compensation being the same as for victim of death.

169
AIR 1992 SC 1804
170
1995 SCC (Cri) 925
171
(1995) 6 SCC 194
172
(1995) 1 SCC 14
173
AIR 1996 SCC 922
174
[(1996)UPLBEC 461]AUHC
 The Chairman, Railway Board and Others v. Mrs. Chandrima Das and
Other175 a sum of Rs.10 lakhs was awarded as compensation for Smt. Hanuffa Khaton as the
High Court was of the opinion that the rape is not a mere matter of violation of an ordinary
right of a person but the violation of Fundamental Rights which is involved.
An examination of acid attack cases again underlines the urgent need for a
scheme of compensation for the victims. Acid attack victims often have to, as stated earlier,
undergo multiple surgeries costing Lakhs of Rupees. They are also in urgent need of
rehabilitation as they often need financial help to exist. They may not be able to seek
employment.
The National commission for Women (NCW) has suggested a separate
legislation to deal with the offence of acid attack and as part of the proposed legislation has
suggested that the Central government should establish a National Acid Attack Victims
Assistance Board which will provide assistance to the acid attack victims by way of ensuring
medical treatment and other services such as psychological counselling. The board has also
been given the task to recommend to the Government strategies to regulate and control inter
alia the production and sale of acids. It has been suggested that the board administers a fund
to be called The National Acid Attack Victims Assistance Fund to which the Central and
State government can give grants apart from others. It has been provided that the board can
give interim financial relief up to Rs. 1,00,000 within a period of 30 days directly to the
hospital.
Apart from other issues the main problem with the suggestions of the N.C.W
is that it is restricting the function of the board to only acid attack cases. Keeping in view the
whole scenario of compensatory jurisprudence the ambit of criminal justice system needs to
be expanded keeping in view the overall change in the approaches, thinking and
circumstances. The victim should not be forgotten while administering justice. He should
fairly be compensated for the injury caused by the act of offender. This would prove to be an
effective means to attain the ends of justice. The Courts should be empowered to impose
compensation even in cases where the fine does not form part of sentence. The discretionary
power of the Court should be converted into a legal mandate requiring it in all suitable cases
to pass compensation orders and when it decides not to do so it may be made obligatory to
record reasons for doing so. The victim of an offence be legally allowed to intervene in the
criminal proceeding against the offender to claim compensation for loss or injury. Such a
provision will certainly enhance the use of statutory provisions to compensate victims of

175
(2000) INSC 26 (28 January 2000) www.commonlii.org accessed on 28/05/2009
crime, as it would amount almost to presume that the compensation is to be considered in
every case.

Compensation for Riot Victims and Restitution:

The right of a victim of crime to restitution has not yet merited statutory
recognition. In this area, the constitutional courts have been inclined to examine the plea of
victims for redressal of the losses suffered during violent incident including riots and caste
clashes, the principle that is evoked is that of culpable inaction under which the state and its
agencies are expected to anticipate the losses or damages to public and private property in
certain situations over which the potential victims have no control. The courts have gone as
far as to find the state liable only where a definite failure on its part act has resulted in the
loss.
The outbreak of riots in the wake of the assassination of the Prime Minister on
October 1984, resulted in large- scale damage to the properties of members of the Sikh
community in several places of the country. In R. Gandhi v. Union of India 176 , the Madras
High Court, action on the reports of a commissioner appointed by it to assess the losses,
directed payment of varying amounts of compensation for the losses to property of the Sikh
community in Coimbatore.
However, in Sri Lakshmi Agencies v. Government of Andhra Pradesh, the
Andhra Pradesh High Court declined to accept the prayer for compensation to
the loss of life, injury, destruction and loss of property as a result of the violence that
followed the murder of sitting member of the legislative assembly. The court explained that:
"it is only when the officers of the state do any act positively or fail to act as contemplated
under law leading to culpable inaction, that the state is liable to pay the damages, there
should be a direct nexus for the damages suffered on account of state action and if that is
absent, Article 21 of the Indian Constitution is totally inapplicable". This is still an evolving
area in which the courts are seen to be treading cautiously.

COMPENSATION FOR DEATH IN JAIL

In a far reaching judgment on human rights in C. Ramakonda Reddy v. State
of Andhra Pradesh177 High Court awarded Rs. 1,44,000 as damage against the State
Government for the death of person in judicial custody. In this case an under-trial prisoner in
jail lost his life due to the failure or neglect of its officers to perform their duties. He was

176
A.I.R 1989 Madras 205,
177
A.I.R. 1989 Anghra Pardesh 235.
killed by his rivals who hurled bombs into his cell. In this case the State took the plea of
sovereign immunity therefore State is not liable to pay the compensation. Rejecting this plea
Justice Jeevan Reddy speaking for the Bench said: "We are perfectly aware the principle
adumbrated herein open up a new vista for individual claims for damages against the
State, it may add to the present-day difficult financial position of the State. But we are of
the opinion that such a remedy is not statuary but essential for good Government and for
ensuring Rule of Law." An analysis of the above case laws gives an indication that the
courts in India, at least at the higher level though slowly but may have started realizing the
importance of the victim and the necessity to ameliorate the plight of the victim to' the extent
possible by restitution.

BROADER PRINCIPLES FOR PAYMENT OF

COMPENSATION
These are the situation where Supreme Court has evolved the compensatory
jurisprudence. While awarding the compensation to the victims our courts, particularly the
Supreme Court of India has clearly established that the State cannot claim sovereign
immunity for the misdeeds of: its officers. However, it can reimburse from then the amount
paid: in compensation. In following (however, there are so many) instances compensation has
been awarded:
a. Compensation to those custodial tortured victims.
b. Compensation to relatives of deceased victims.
c. Compensation to rape victims and in many cases interim compensation has
been also given to the rape victims.
d. Compensation for illegal confinement in police custody and illegal detention
in jail.
e. Compensation for illegal arrest, illegal use of handcuffing, death in the police
custody etc.
f. Compensation to the victims of riots.
g. Compensation to those victims who are grievously hurt, for amputation of any
organ of body.
h. Enhancement of compensation while reducing punishment. These are the
Broader areas where the compensation has been awarded to victims.
COMPENSATION FOR MURDER
In murder cases, courts are of the view that true justice will be rendered only
when proper compensation is provided to the dependents of the deceased. The amount of
compensation awarded ranges from Rs. 10,000 to Rs.1, 00,000 or sometime more than that
depending upon the number of dependents of the deceased and capacity of the accused to pay
the same. The recent development is that the Court directed the State to pay compensation
when the accused is poor and don’t have the capacity to pay compensation. The Court in
several cases directed the State to frame the compensation scheme and ultimately the
Government took the initiative to insert the Section 357 in the Code of Criminal Procedure.
In Guruswamy v. State of Tamil Nadu178, the Supreme Court awarded Rs.10,
000 as compensation to the widow and the minor children of the deceased. In this case five
accused with weapons caused injuries to the deceased which resulted in his death due to a
dispute over water among brothers in a family. The Supreme Court imposed a fine of Rs.
3500 on each of the accused and the same amount to be paid to the widow of the deceased.
In Swaran Singh v. State of U.P.179, the Supreme Court treated compensation
as an alternative to imprisonment. On special leave petition, it upheld the conviction but
reduced the sentence to the period already undergone (one year) by the accused. It directed
the accused to pay to the widow of the deceased a fine of Rs. 20,000 by way of compensation
under Section 357 of the Criminal Procedure Code.
In Saheli: A Women’s Resources Centre v. Commissioner of Police, Delhi
Police Headquarters180, the State was held liable to pay compensation payable to the mother
of the deceased who died as a result of beating and assault by the police. In this case
reference was made to the State’s liability for tortuous acts of its servants to argue that the
State liability for tortuous acts has to be determined on the principle of Sovereign Immunity.
But in that case the State’s plea of sovereign immunity for tortuous acts of its servants was
confined to the sphere of liability in tort, which is distinct from the State’s liability for
contravention of fundamental rights to which the doctrine of sovereign immunity has no
application.
Similarly in Nilabati Behera v. State of Orissa181, the Court denied the
defence of sovereign immunity and award compensation of Rs. 1, 50,000 to petitioner for the
death of her son in police custody. The Court further observed that:

178
(1979) 3 SCC 797.
179
(1998) 4 SCC 75.
180
AIR 1990 SC 513.
181
(1993) 2 SCC 746.
 “Administrative sclerosis leading to flagrant infringements of fundamental
rights cannot be corrected by any other method open to the judiciary to adopt. The right to
compensation is some palliative for the unlawful acts of instrumentalities which act in the
name of public interest and which present for their protection the powers of the state as
shield. If Civilization is not to perish in this country as it has perished in some others too
well-known to suffer mention, it is necessary to educate ourselves into accepting that,
respect for the rights of individuals is the true bastion of democracy. Therefore, the State
must repair the damage done by its officers to the petitioner's rights. It may have recourse
against those officers".
In both the cases the Court denied the defence of sovereign immunity and held
that the State is vicariously liable for the act of its servant or officer. In another case 182, the
same principle was followed and the State was held liable for depriving the respondent’s son
his precious right to life. The facts of the case were that, Nasiruddin, the son of the
respondent was picked up by the police officers on 15-04-1996 and was lodged in Tihar Jail.
He died while in custody on 13-07-1996 and 15 injuries were noticed on his body as per post-
mortem report. In order to have second opinion about the cause of the death, a Board of
Doctors was appointed by the Government of National Capital territory of Delhi. According
to its report, though most of the injuries could have been self-inflicted, it was not as in the
case of injury Nos. 11 and 13 to 15. Accepting the writ petitioner’s plea that the death was
custodial in nature, the State held to be liable to pay compensation and accordingly
compensation was fixed at 4.25 lakhs to be given by the State to the writ petitioner. It was
further directed that the responsibility should be fixed on the persons for beatings
administered to the deceased leading to his death and for taking action against those erring
official/officers.
To support the above observation, the court rightly referred to Article 9 of the
International Covenant on Civil and Political Rights, 1966 and held that the state is liable to
pay compensation for police atrocities. The court further held that the said provision indicates
that an enforceable right to compensation is not alien to the concept of a guaranteed right. It
is also pertinent to mention that the provision of compensation to the crime victims is crying
need of the honour. The International Covenant on Civil and Political Rights, 1966
indicates that an enforceable Right to compensation is conceptually integral to Human
Rights.

182
Government of National Capital Territory of Delhi v. Nasiruddin, 2001 CrLJ 4925
COMPENSATION FOR SEXUAL ASSAULT
The Apex Court and High Courts passed several judgments to protect the
rights of victims of sexual assault. The Court time to time gives the directions to Government
to take initiative to protect the victims of sexual assault.
In Kunhimon v. State of Kerala183, a young rustic girl who suffered from
Epilepsy and Somnambulism were raped by five persons. The High Court of Kerala states
that rape is an offence of invoking extreme moral turpitude, at once displaying callous
disregard for dignity of the human being and justifies the necessity of compensation to rape
victims. The Court further observed that courts should enforce the conscience of law as seen
in Section 357 of the CrPC. The High Court sentenced the four accused to pay a fine of
Rs.3000 each and the fifth accused, to pay Rs. 10,000 as compensation to rape victim.
In another case the Apex Court has come to the rescue of the victims of sexual
assault by holding the interim compensation may be awarded to a rape victim even during the
pendency of the criminal trial184.
The Court further observed that unfortunately, a woman, in our country,
belongs to a class or group of society who are in a disadvantaged position on account of
several social barriers and impediments and have, therefore, been the victim of tyranny at the
hands of men with whom they, fortunately, under the Constitution enjoy equal status. Women
also have the right to life and liberty; they also have the right to be respected and treated as
equal citizens. Their honour and dignity cannot be touched or violated. They also have the
right to lead an honourable and peaceful life. Women, in them, have many personalities
combined. They are Mother, Daughter, Sister and Wife and not play things for centre spreads
in various magazines, periodicals or newspapers nor can they be exploited for obscene
purposes. They must have the liberty, the freedom and, of course, independence to live the
roles assigned to them by Nature so that the society may flourish as they alone have the
talents and capacity to shape the destiny and character of men anywhere and in every part of
the world.
Rape is thus not only a crime against the person of a woman (victim), it is a
crime against the entire society. It destroys the entire psychology of a woman and pushed her
into deep emotional crises. It is only by her sheer will power that she rehabilitates herself in
the society which, on coming to know of the rape, looks down upon her in derision and
contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights
and is also violative of the victim's most cherished of the Fundamental Rights, namely, the

183
1988 CrLJ 493
184
Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490.
Right to Life contained in Article 21 of Indian Constitution. To many feminists and
psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and
humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the
matter and are inept in many respects. Finally Court directed to Bodhisattwa Gautam shall
pay to Subhra Chakraborty a sum of Rs. 1000 /- every month as interim compensation during
the pendency of criminal case and also directed the petitioner to pay arrears of compensation
at the same rate from the date on which the complaint was filed till date. Hence the Court
emphasis the necessity of adequate compensation to the victims of sexual assault for the loss
of reputation, agony, torture, misery and the deprivation of the prospect of marriage and
settling down to a serene family life.
As discussed earlier with different perspective, In Delhi Domestic Working
women’s Forum v. Union of India185, the Court held that a Criminal Injuries Compensation
Board should be constituted for the award of compensation whether or not convicted has
taken place. To espouse the pathetic plight of four domestic servants who were subjected to
indecent assault by seven army personnel in a train, the Delhi Domestic Women’s Forum
filed a writ petition in the Supreme Court under Article 32 of the Constitution of India. The
forum urged the Supreme Court to spell out the parameters on expeditious conduct and
investigation of trial including compensation to victims of rape. The Apex Court seriously
takes the note of entire matter and finally gives the broad parameters to protect the interest of
victims of sexual assault.
(1) The complainants of sexual assault cases should be provided with legal
representation. It is important to have someone who is well-acquainted with
the 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 represents 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.

185
(1995) 1 SCC 14.
 (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 authorized 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
necessity.
(7) It is necessary, having regard to the Directive Principles contained under
Article 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 traumatized 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.
First time the Apex Court gives detail guidelines to protect the rights of
Victims of sexual assault and clearly spell out the necessity of legal help and assistance at the
time of filing first information report and also to compensate such victims. To understand the
agony of rape victims, a Division Bench comprising Justices Kuldeep Singh and S. Sagir
Ahmed observed:
“If the court trying an offence of rape has jurisdiction to award the
compensation at the final stage, there is no reason to deny to the Court the right to award
interim compensation. The jurisdiction to pay interim compensation shall be treated to be
part of the overall jurisdiction of the Courts trying the offence of rape which is an offence
against the basic human rights and also the fundamental right of personal life and liberty.
Unfortunately, a woman in our country, belongs to a class or group of society who are in a
disadvantaged position on account of several social barriers and impediments and have
therefore, been the victim of tyranny at the hands of men with whom they, fortunately
under Constitution enjoy equal rights.”186
Similarly the Apex Court granted compensation to foreign tourist for sexual
assault and clearly states that foreigners are also entitled to protect their fundamental rights.
As in Chairman, Railway Board v. Chandrima Dass187, the Apex Court ordered
Rs.10,00,000 compensation for a foreign tourist from Bangladesh who was
raped by the Railway employees in the Yatri Niwas at Calcutta on February 26, 1998. The
victim has arrived at Howarh Railway station from Bangladesh with a view to catch a train
for Ajmer. She was taken by some of the employees of the Railway to Yatri Niwas. The room
of the Yatri Niwas was booked in the name of one of the employees against Railway card
pass. She was raped there by four Railway employees. Later she was taken out a rented house
by another railway employee and again raped. Following the hue and cry she was rescued by
the police. The Apex Court held that the foreign national is also entitled to the fundamental
right to life in India. The Court said: “As a national of another country, Smt. Hanuffa
Khatoon could not be subjected to physical violence at the hands of the Government
employees who outraged her modesty. The right available to her under Article 21 was thus
violated. Consequently, the State was under a constitutional liability to pay compensation
to her.”
The contention of the Railway, that it cannot be held vicariously liable for the
offence of rape committed by its employees, for the liability would arise only when the act
complained of was performed in the course of official duty. Since rape cannot be said to be
an official act, the Government would not be liable even under the law of torts, this
contention on the part of State was rejected and Government asked to pay compensation to
victim of rape.
The Apex Court even granted a compensation for the offence of outraging
modesty of woman in a high profile case188, where the former Punjab Police Chief found
guilty under Section 354 and Section 509 of IPC as he patting Ms. Bajaj, a senior IAS officer
in the posterior while he was allegedly in inebriated condition at a party hosted by then
Financial Commissioner (Home) S.L. Kapoor at his residence on July 18, 1988. The Court
awarded a fine of Rupees two lakh as compensation to the victim. After the verdict from
Apex Court, Ms. Bajaj said her faith in the judicial system has been upheld and further she
stated “my entire family has been through hell. Nobody can imagine the kind of pressure we
were under. But, I am happy, justice has been done.”

186
Ibid
187
(2000) 1 SCC 465.
188
Rupan Deol Bajaj v. Kanwar Pal Singh Gill, 2005 Cri.L.J. 2043
 By giving such kind of judgment the Apex Court gives the message that
nobody is above the law and any person can be punished for his misbehavior towards woman.
Recently the Supreme Court, based on the news item published in the Business and Financial
News dated 23.01.2014 relating to the gang-rape of a 20 year old woman of Subalpur Village,
P.S. Labpur, District Birbhum, State of West Bengal, on the orders of community panchayat
as punishment for having relationship with a man from a different community, by order dated
24.01.2014, took suo motu action and directed the District Judge, Birbhum District,
West Bengal to inspect the place of occurrence and submit a report to this Court within
a period of one week from that date.189
The Court request to Mr. Sidharth Luthra, Learned Additional Solicitor
General to assist the Court as amicus in the matter and also directed to the Chief Secretary to
submit a detailed report within a period of two weeks as to the steps taken by the police
against the persons concerned. Pursuant to the aforesaid direction, the Chief Secretary
submitted a detailed report on 10-02-2014 and the copies of the same were provided to the
parties.
Considering the facts and circumstances of the case, the Court is of the view
that the victim should be given a compensation of at least Rs. 5 Lakhs for rehabilitation by
the State. Court directed State of West Bengal to make a payment of Rs.5 lakhs, in addition to
the already sanctioned amount of Rs. 50,000 within one month from today.
Besides this Court further stated that, the Court has some reservation regarding
the benefits being given in the name of mother of the victim when the victim herself is a
major (i.e. aged 20 years). Thus Supreme Court opined that it would be appropriate and
beneficial to the victim if the compensation and other benefits are directly given to her and
accordingly court did the order. While passing the order the Court Observed: “The crimes, as
noted above, are not only in contravention of domestic laws, but are also a direct breach of
the obligations under the International law. India has ratified various international
conventions and treaties, which oblige the protection of women from any kind of
discrimination. However, women of all classes are still suffering from discrimination even
in this contemporary society. It will be wrong to blame only on the attitude of the people.
Such crimes can certainly be prevented if the state police machinery work in a more
organized and dedicated manner. Thus, we implore upon the State machinery to work in
harmony with each other to safeguard the rights of women in our country.”

189
Suo Motu Writ Petition (Criminal) No. 24 of 2014.
 Recently on one of the important issue regarding the quantum of punishment,
the bench of Supreme Court headed by Tirathsingh Thakur, J. expressed their view and
further stated that the Court should give such punishment that create the real deterrence to the
offender and there should be correlation or equality between the nature of offence and the
quantum of punishment given to the offender. The Haryana High Court reduced the
punishment of seven years given by the trial court to the period which the offender spend in
the jail and ask every accused to pay compensation of Rs. 25,000. The Ravindra Singh who is
the brother of deceased Duli Chand preferred an appeal to Supreme Court against the order of
High Court and while examine the facts of case the Supreme Court does not extend the
punishment but extend the amount of compensation to Rs. 1, 25,000 and directs the every
accused to pay the same amount to the victims and express the above views.190
Hence the Supreme Court takes the serious note of the fact that the victims
should not be satisfied by giving less punishment to the offender and at the same time the of
purpose of punishment will not be served if the competent Court does not take into
consideration the correlation between the nature of offence and the quantum of punishment.

CONCLUSION
It is thus, evident that the fragmented legal framework providing for
compensation by an offender to his victims for loss suffered or injury caused by commission
of the offence is inadequate. It does not provide for a comprehensive legislative scheme for
either compensating victims of crime or the payment of ‘compensation’ and ‘specified
amount’ awarded to them. It neither mandates courts to compensate the victims nor creates
any legal right in their favour. It is entirely left to their (courts’) discretion to compensate
victims of crime as well as to initiate legal action to recover the fine, out of which
compensation is ordered, or the specified amount of compensation from the offender to pay it
to crime victims. The whole scheme of award and payment of compensation in
India thus solely depends upon the sweet will of courts. According to the
penologists and criminologists, compensatory justice to be rehabilitative & restorative in
nature and tendency. The right to compensation as an entitlement to guarantee the
enforcement of other fundamental freedoms and human rights enshrined in constitutional &
statutory laws of the nation covers within its ambit the concepts of restoration, restitution,
rehabilitation and correction. The right to compensation remains rudimentary to the justice
delivery mechanism to the victims of crimes and abuse of power. The constitutional and

190
See Dainik Divya Marathi, Marathwadw Edition (Maharashtra), dt.20-07-2015
human rights’ jurisprudence relating to the elementary right to compensation is praise-worthy
and elucidates the intellectual-legal-logical calisthenics of the doctrine of the rule of law with
the changing modalities of management & its escalating subjugation.
In the current decade of victimological research, there is a substantial interest
in the study of impact of crime on victims and ways to assist them. Assistance to victims of
crime is of great significance because victims have suffered irreparable damages and harm as
a result of crime. The problems of crime victims and the impact of crime on them is varied
and complex. Therefore, the agencies of the criminal justice system should be receptive to the
needs of the victims of crime and address their issues sincerely and empathetically. Like in
the United States, Europe and the other developed countries, both the Government of India
and the State Governments should enact exclusive legislations for victims of crime, as the
existing provisions in the criminal laws are not sufficient. The limitation of the resources of
the State in making adequate provision in form of a victim assistance fund ought not to be
countenanced any longer. While the Criminal Procedure Code accepts the principle of victim
compensation, in practice, the provision has remained merely on paper as number of
judgments of our Supreme Court has revealed. This reluctance of judiciary to exercise its
power may be due to many reasons, such as, the limited discretionary and circumscribed
nature of this power, difficulty of recovery in majority of cases, lack of capacity of accused
persons, lack of orientation for victim compensation in magistracy. A ray of hope is the
recommendations of the Committee on Reforms of Criminal Justice System headed by
Justice V. S. Malimath.
The Committee has emphasized the need for a paradigm shift in the justice
system. Hence, the Government of India may have to take efforts to implement the
recommendations of the Committee on Reforms of Criminal Justice System. There should
also be a change in the focus from criminal justice to victim justice, but victim justice should
be perceived as complementary and not contradictory to criminal justice. The need of hour is
to make an independent legislation so that it can solely and clearly deal with the victims'
compensation scheme. For this purpose we can look at U.N. Declaration of Victims Rights,
1985, various Reports of Law Commission of India, Legislations enacted in U.S.A.,
NewZeland, Australia and England, and proposed Bill of NLSIU. The power
to award compensation is intended to reassure and promise the victim that he or she is not
forgotten in the criminal justice and it is a constructive approach to crime dispensation which
powers should be exercised liberally. The social purpose intended to be served by this should
not be ignored in the broad dimensions of equitable justice delivery. Therefore 'justice'
should not only be done but it must be seen to have been done.
 2,000 compensated in Manodhairya scheme in 1 year: Maharashtra to
HC (Hindustan Times, Mumbai Updated: Apr 30, 2015 22:00 IST): After being pulled up
by the Bombay high court over its half-hearted implementation of the Manodhairya scheme,
aimed at providing financial, medical and legal aid, rehabilitation and counselling to
survivors of rape and child abuse, the state government said it had helped more than 2,000
women in the past one year. On Thursday, the government said it had spent around Rs 27
Crore between January 2014 and February 2015 to compensate and rehabilitate the survivors.
In an affidavit filed before a division bench headed by justice V. M. Kanade,
the government submitted that a total of 1,206 cases of rape, 1,711 cases of sexual abuse of
minors and eight cases of acid attack had been reported in the state till February this year. Of
these, 927 rape, 1,295 sexual abuse and six acid attack cases have been sanctioned by for aid
under the scheme. In Mumbai, aid for 15 cases of rape and 59 cases of sexual abuse had been
sanctioned under the scheme during the same period. Earlier, the court had directed the
government to spell out its efforts towards publicizing the Manodhairya scheme among
survivors as well as the police and investigating authorities in cases of crimes against women.
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