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Judge GKIJ Victim Compensation Scheme for Women Victims / Survivors For Petitioner : Mr.C.K.ChandrasekkarFor RespondentsFor R1 & 2 : Mr.K.S.Mohandass,Public Prosecutor(Pondy)ORDER

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.9565 of 2021
A.Aline … Petitioner
Vs. 1.Union Territory of Puducherry rep. By its Secretary, Home & Prison Department,
Puducherry – 605 001
2.The Chief Superintendent of Jail,
Central Prison,
Kalapet, Puducherry 605 014
3.The Member Secretary,
Union Territory of Puducherry Legal Services Authority,
No.3, Lal Bahadur Shastri Street,
Puducherry 605 001
(R3 suo motu impleaded vide order
dated 14.06.2021 made in WP.No.9565
of 2021) … Respondents
PRAYER: Writ petition is filed under Article 226 of the Constitution of India to issue a writ of Certiorarified mandamus after calling for the records relating to the order bearing reference No.800/UTPLSA/2017-18 dated 3 / 4 -8-2017 issued by the third respondent and to quash the same as being illegal, arbitrary and unconstitutional and consequently direct the respondents to comply with the provisions of Section 357-A of the Criminal Procedure Code and grant victim assistance to the petitioner with all attendant benefits.
(prayer amended as per order dated 18.10.2023 in WMP.No.21027 of 2022 in
WP.No.9565 of 2021)
For Petitioner : Mr.C.K.Chandrasekkar
For Respondents
For R1 & 2 : Mr.K.S.Mohandass,
Public Prosecutor(Pondy)
ORDER
This writ petition has been filed to quash the order bearing
reference No.800/UTPLSA/2017-18 dated 3 / 4 -8-2017 issued by the third respondent and consequently to direct the respondents to comply with the provisions of Section 357-A of the Criminal Procedure Code and grant victim assistance to the petitioner with all attendant benefits.

  1. After filing the writ petition, the petitioner came to understand that the request of the petitioner before the prison authorities was rejected by the order dated 04.08.2017. Therefore, the petitioner filed petition to amend the prayer and the same was allowed. Accordingly, the petitioner is challenging the order dated 04.08.2017 passed by the third respondent and also seeking direction to the respondents to comply with the provisions of Section 357A of
    Cr.P.C and to grant victim assistance to the petitioner.
  2. The case of the petitioner is that she is one of the daughters of one, Abhimannan Prakash, a life convict who was punished for having murdered the petitioner and her sister’s mother. In pursuant to the said crime, FIR was registered in crime No.221 of 2003. In pursuant to the registration of FIR, investigation was completed and filed final report and the same had been taken cognizance in SC.No.11 of 2005 for the offence punishable under Section 302 of IPC. By the judgment dated 25.03.2009, he was convicted for the offence punishable under Section 302 of IPC and sentenced him to life. Their mother was murdered and their father is incarcerating imprisonment in Central Prison, Kalapet. They were under the care and custody of their maternal grandmother who also recently passed away. They came to know that a portion of wages in the prison of their father is deducted for being paid to the victims affected by the crime. Therefore, the petitioner and her sister being the victims, are entitled to receive the said amount. Therefore, they approached the second respondent, but of no avail. By an order dated 23.05.2017, they have to approach the court as per Section 2(2) of Section 357A of Cr.P.C. to get victim assistance. However, the petitioner approached the third respondent. Their claim was rejected on the ground that the Puducherry Victim Assistance Scheme, 2012 came into force on 07.02.2013, whereas the claim made by the petitioner with regard to the occurrence happened in the year 2003. Therefore, the scheme could not be invoked for ordering payment of assistance as it is barred. Further stated that these very principles apply in the case of an amendment in a Statute. If the amendment intends to create a substantial right or if it affects the vested right, it shall ordinarily be prospective in nature though an amendment in the procedural law like relating to form and limitation can be applied
    retrospectively.
  3. Therefore, the petitioner approached the Legal Services Authority of this Court and the learned counsel Mr.C.K.Chandrasekkar has been nominated to file this writ petition. He submitted that delay in filing is due to genuine difficulties faced by the petitioner and her sister. Further, lack of funds to conduct litigation is also one of the main reasons. The victim assistance is part of Article 21 and right to life. It is guaranteed under Section 357A of Cr.P.C. as well. Therefore, directing the petitioner to approach the court itself is arbitrary and unconstitutional. In fact, the petitioner and her sister deposed before the court of law against their father and he was convicted and claimed compensation under Section 357A of Cr.P.C.
  4. The second respondent filed counter, which revealed that the provision under Section 357A of Cr.P.C. came into force only with effect from
    31.12.2009. The Puducherry Victim Assistance Scheme, 2012 came into effect from 07.02.2013. The Puducherry Victim Compensation Scheme for Women Victims / Survivors of Sexual Assault / Other crimes (hereinafter called as ‘the scheme’) came into force only in the year 2019. Therefore, the claim made by the petitioner was rightly rejected by an order dated 04.08.2017. That apart, it was challenged after period of four years by way of this writ petition. Insofar as the wages paid to the convict i.e. the father of the petitioner, he is working in jail from 2009 to 2020 and he had earned gross wages to the tune of Rs.3,01,125/-. After deduction of Rs.1,75,800/- (Upkeep fund/victim fund/ welfare fund), net payable wages are Rs.1,25,325/-. Thereafter, he had already spent a sum of Rs.1,00,806/-. As per GO.Ms.No.25 dated 25.05.2001 and by GO.Ms.No.9 dated 23.02.2012, deductions have been made in the wages interalia towards victim compensation scheme and the total amount so far deducted towards victim compensation scheme is Rs.96,160/-.
  5. The learned counsel for the petitioner relied upon the judgment of the Hon’ble Supreme Court of India in the case of Suresh Vs. State of Haryana reported in (2015) 2 SCC 277, in which the Hon’ble Supreme Court of India held as follows:
    The principles of victimology has foundations in Indian constitutional jurisprudence. The provision on Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) form the bulwark for a new social order in which social and economic justice would blossom in the national life of the country (Article 38). Article 41 mandates inter alia that the State shall make effective provisions for “securing the right to public assistance in cases of disablement and in other cases of undeserved want.” So also Article 51A makes it a fundamental duty of every Indian citizen, inter alia ‘to have compassion for living creatures’ and to ‘develop humanism’. If emphatically interpreted and imaginatively expanded these provisions can form the constitutional underpinnings for victimology.
    9.2 However, in India the criminal law provides compensation to the victims and their dependants only in a limited manner. Section 357 of the Code of Criminal Procedure incorporates this concept to an extent and empowers the Criminal Courts to grant compensation to the victims.
  1. In India the principles of compensation to crime victims need to be reviewed and expanded to cover all cases. The compensation should not be limited only to fines, penalties and forfeitures realized. The State should accept the principle of providing assistance to victims out of its own funds…..”
  2. The question then is whether the plenitude of the power vested in the Courts Under Section 357 & 357-A, notwithstanding, the Courts can simply ignore the provisions or neglect the exercise of a power that is primarily meant to be exercised for the benefit of the victims of crimes that are so often committed though less frequently punished by the Courts. In other words, whether Courts have a duty to advert to the question of awarding compensation to the victim and record reasons while granting or refusing relief to them?
  3. The subject matter has been dealt with by experts from over 40 countries in series of meetings and a document has been developed in cooperation with United Nations Office at Vienna, Centre for International Crime Prevention and the compilation under the heading “Handbook on Justice for Victims” which deals with various aspects of impact of victimization, victims assistance programmes and role and responsibility of frontline professionals and others to victims. The South African Law Commission, in its “Issue Paper 7” (1997) under the heading “Sentencing Restorative Justice: Compensation for victims of crime and victim empowerment” has deliberated on various relevant aspects of this issue.
  4. We are of the view that it is the duty of the Courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the Court ought to direct grant of interim compensation, subject to final compensation being determined later. Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. At the stage of final hearing it is obligatory on the part of the Court to advert to the provision and record a finding whether a case for grant of compensation has been made out and, if so, who is entitled to compensation and how much. Award of such compensation can be interim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances of an individual case. We are also of the view that there is need to consider upward revision in the scale for compensation and pending such consideration to adopt the scale notified by the State of Kerala in its scheme, unless the scale awarded by any other State or Union Territory is higher. The States of Andhra Pradesh, Madhya Pradesh, Meghalaya and Telangana are directed to notify their schemes within one month from receipt of a copy of this order. We also direct that a copy of this judgment be forwarded to National Judicial Academy so that all judicial officers in the country can be imparted requisite training to make the provision operative and meaningful.
  5. Thus, it is clear that the victim is entitled for compensation on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. In the case on hand, the petitioner’s father is an accused. Deceased is her mother i.e. the husband murdered his wife. They gave birth to the petitioner and her sister. The petitioner as well as her sister deposed before the trial court and based on their deposition, their father was convicted to life sentence. Now he is incarcerating imprisonment. Their mother was murdered by their father on 25.10.2003. Thereafter, the crime was registered in crime No.221 of 2003 and after completion of investigation, the investigation agency filed final report and the same has been taken cognizance by the trial court and convicted their father for the offence punishable under Section 302 of IPC and sentenced him to life. At the time of crime, the petitioner as well as her sister were tender aged children. They were taken care of by their maternal grandmother. Unfortunately, she also died and now no one is there to take care of them. Thereafter, they made application before the third respondent seeking compensation under the
    Puducherry Victim Compensation Scheme for Women Victims / Survivors of
    Sexual Assault / Other crimes, 2019 and Section 357 A of Cr.P.C. before the

third respondent. The third respondent dismissed their claim only on the ground that the claim is barred by limitation since the scheme itself was introduced only on 07.02.2013 and the amendment under Section 357 of Cr.P.C. came into force with effect from 31.12.2009.

  1. In the case of Suresh Vs. State of Haryana reported in (2015) 2
    SCC 277, the Hon’ble Supreme Court of India further recorded as follows:
    1) UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, highlighting the following areas:-
    (i) Access to Justice and fair treatment;
    (ii) Restitution;
    (iii) Compensation;(iv) Assistance.
    2) Council of Europe Recommendation on the Position of the Victim in the Framework of Criminal Law and Procedure, 1985.
    3) Statement of the Victims’ Rights in the Process of
    Criminal Justice, issued by the European Forum for Victims’ Services in 1996.
    4) European Union Framework Decision on the
    Standing of Victims in Criminal Proceedings.
    5) Council of Europe Recommendations on assistance to Crime victims adopted on 14.6.2006.
    6) 152nd and 154th report of the Law Commission of India, 1994 and 1996 respectively, recommending introduction of Section 357-A in criminal procedure code, prescribing, inter-alia, compensation to the victims of crime.
    7) Recommendations of the Malimath Committee, 2003.
  2. Though Law Commission of India on its 152nd and 154th report of the year 1994 and 1996 recommended introduction of Section 357A in Criminal Procedure Code with regards to compensation to the victims of crime and recommendations of the Malimath Committee in the year 2003, the amendment in Criminal Procedure Code came into force only from 31.12.2009. Therefore, the recommendation was made even in the year 1994 and 1996 by the Law Commission of India and subsequently by the recommendation of Malimath Committee in the year 2003. In fact, other countries implemented the scheme as per their recommendations even before 1997.
  3. The learned counsel for the petitioner also mainly relied upon the judgment of the High Court of Kerala rendered in WP(C).No.7250 of 2014 dated 22.12.2020 in the case of District Collector, Alappuzha Vs. District Legal Service Authority, Alappuzha rep. by the Secretary, wherein it is held as follows:
  4. While interpreting Section 357A(4) Cr.P.C., this Court cannot be oblivious of the agony stricken face of the victim and the trauma and travails such victims have undergone, especially when their offenders have not even been identified or traced out or a trial conducted. The agonizing face of the victims looms large upon this Court while considering the question raised for decision.
  5. With the aforesaid principles hovering over Section 357A(4)&(5) Cr.P.C., the provision ought to be interpreted in such a manner that it benefits victims. If the said benefit could be conferred without violating the principles of law, then courts must adopt that approach. A substantive law that is remedial, can reckon a past event for applying the law prospectively. Such an approach does not make the substantive law retrospective in its operation. On the other hand, it only caters to the intention of the legislature.
  6. In other words, when an application is made by a victim of a crime that occurred prior to the coming into force of Section 357A(4) Cr.P.C., a prospective benefit is given, taking into reckoning an antecedent fact. Adopting such an interpretation does not make the statute or the provision retrospective in operation. It only confers prospective benefits, in certain cases, to even antecedent facts. The statute will remain prospective in application but will draw life from a past event also. The rule against retrospectivity of substantive law is not violated or affected, merely because part of the requisites for action under the provision is drawn from a time antecedent to its passing. Merely because a prospective benefit under a remedial statutory provision is measured by or dependent on antecedent facts, it does not necessarily make the provision retrospective in operation.
  7. The above view is fortified by the decision in The Queen v. The Inhabitants of St. Mary, Whitechapel (1848 12 QB 120) at 127, where Lord, Denman CJ stated that “a statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing”. The observations in the decision in Master Ladies Tailors Organisation v. Minister of Labour and National Service (1950 (2) All ER 525) are also relevant. It was held at page 527 that “the fact that a prospective benefit is in certain cases to be measured by or depends on antecedent facts does not necessarily make the provision retrospective”. The above referred, two English decisions, were relied upon by the Supreme Court, in Sree Bank Ltd. (in liquidation) v. Sarkar Dutt Roy & Co. (AIR 1966 SC 1953), while it was considering the retrospective application of Section 45O of the Banking Companies Act, 1949, (brought in by an amendment of 30-12- 1953, as per which the period spent on presenting and pursuing a winding up petition can be excluded for determining the period of limitation to revive a time barred debt).
  8. In the judgment in Piyali Dutta v. State of West Bengal and Others (2017 Cr.LJ 4041), the Calcutta High Court held that Section 357A is time neutral, i.e, it does not distinguish between victims of a crime happening before the introduction of the section in the statute with those incidents of crime happening post its introduction in the statute book. It was also held that the section does not make any distinction between victims on the basis of the time of occurrence of the crime and also that, segregation on the basis of time, is unacceptable and would militate against the right to equality and equal treatment by the State guaranteed under the Constitution of India.
  9. As per the Puducherry Victim Compensation Scheme for Women Victims / Survivors of Sexual Assault / Other crimes, 2019, Clause 16 deals with limitation for claiming compensation. Accordingly, no claim made by the victim under Section 357A sub-clause 4 of Criminal Procedure Code after a period of three years from the date of occurrence or conclusion of the trial.
  10. In the case on hand, though the petitioner and her sister repeatedly made claim for compensation under the scheme, they applied on 21.06.2017 before the third respondent. However, the said limitation clause is not in tune with the provision under Section 357A(4) of Cr.P.C. and it would defeat the provision itself. Law does not stipulate a time limit for completion of an investigation. In some cases, the offender cannot be identified or traced and even then, the investigation ought to be concluded. If the time limit of from the date of crime is stipulated for preferring application, it will defeat the very provision itself. Though the scheme provides an application for delay beyond 3 years considered by sufficient reasons, in the case on hand, there was no such scheme or amendment came into force in the provision under Section 357 of Criminal Procedure Code. Thus, it is clear from the above judgment of the Hon’ble High Court of Kerala, wherein after referring various judgments, it is held that a statute is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing. The scheme and the amendment intend to create substantive right.
  11. The fact that that a prospective benefit is in certain cases to be measured by or depends on antecedent facts does not necessarily make the provision retrospective. In the same judgment, the Hon’ble High Court of Calcutta, in the case of Piyali Dutta v. State of West Bengal and
    Others reported in (2017 Cr.LJ 4041), held that that Section 357A is time neutral. It does not distinguish between victims of a crime happening before the introduction of the section in the statute with those incidents of crime happening post its introduction in the statute book . The section does not make any distinction between victims on the basis of the time of occurrence of the crime and also that, segregation on the basis of time, is unacceptable and would militate against the right to equality and equal treatment by the State guaranteed under the Constitution of India. Therefore, the petitioner and her sister are entitled for compensation under the Section 357A(4) of Cr.P.C. and Puducherry Victim Compensation Scheme for Women Victims / Survivors of Sexual Assault / Other crimes, 2019. Further, the petitioner and her sister are victims on the death of their mother. On one hand, children of deceased and on the other hand, the children of the accused since their father murdered their mother. Because of their mother’s death, they are in street and no one is there to look after them. Further, the wages paid to their father in the prison for his work from 2009 to 2020 to the tune of Rs.3,01,125/- and after deduction of Rs.1,75,800/- for Upkeep fund / victim fund / welfare fund, comes to Rs.1,25,325/-. Therefore, the victim compensation fund was already deducted from the salary of the accused. Hence, the claim of the petitioner cannot be rejected on the ground of limitation.
  12. This court, by interim order dated 04.08.2022, directed the second respondent to disburse the amount which was already deducted from the wages of the convict in favour of the petitioner with accrued interest, if any. In order to comply with the said direction, the petitioner was paid her share to the tune of Rs.64,196/- by the cheque No.038945 dated 07.10.2023.
  13. In view of the above discussions, this Court is of the considered opinion that the provisions under Section 357A(1) (4) & (5) Cr.P.C. are substantive in character. The petitioner and his sister Ashanthi are entitled for victim compensation under Section 357A(4) of Cr.P.C. and the Puducherry
    Victim Compensation Scheme for Women Victims / Survivors of Sexual Assault / Other crimes, 2019. Though amendment under Section 357A came into force after the occurrence and the Puducherry Victim Compensation Scheme for Women Victims / Survivors of Sexual Assault / Other crimes, 2019 came into force from 07.02.2013 i.e. after the crime and are not given retrospective effect, the compensation is ordered on the basis of antecedent fact.
  14. Accordingly, this writ petition is allowed by passing the following orders:
    (a) The order bearing reference No.800/UTPLSA/2017-
    18 dated 3 / 4 -8-2017 issued by the third respondent is quashed.
    (b) Considering the age of the petitioner and her sister and the loss of their mother’s life, they are entitled for compensation to the tune of Rs.10,00,000/-. Hence, the first respondent is directed to pay compensation of Rs.10,00,000/- (Rupees Ten Lakhs only) to the petitioner and her elder sister proportionately.
    (c) ) The second respondent is directed to deduct the said amount from the wages of the prisoner Abhi @ Abhimannan Prakash S/o Palanisamy during his incarceration by invoking clause 3 sub-clause 2, sub-clause (d) of the Puducherry Victim Compensation Scheme for Women Victims / Survivors of Sexual Assault / Other crimes, 2019.
    There shall be no order as to costs. 27.11.2023
    Index :Yes/No
    Internet : Yes/No
    Speaking order/non-speaking order lok
    To
    1.Secretary,
    Union Territory of Puducherry
    Home & Prison Department,
    Puducherry – 605 001
    2.The Chief Superintendent of Jail,
    Central Prison,
    Kalapet, Puducherry 605 014
    3.The Member Secretary,
    Union Territory of Puducherry Legal Services Authority,
    No.3, Lal Bahadur Shastri Street,
    Puducherry 605 001
    G.K.ILANTHIRAIYAN, J.
    lok
    W.P.No.9565 of 2021
    27.11.2023

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