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2018 DIGILAW 111 (GAU)

Apu Dutta v. State of Assam

2018-01-23

AJIT BORTHAKUR, UJJAL BHUYAN

body2018
ORDER : Ujjal Bhuyan, J. 1. Heard Mr. B. Chakraborty, learned counsel for the applicant, Sri Apu Dutta, who is the father of the deceased, Arup Dutta. This application has been filed for awarding of victim compensation to the applicant under Section 357A of the Code of Criminal Procedure, 1973 (Cr.P.C.). It is submitted that the aspect relating to award of victim compensation was somehow overlooked by the trial court while convicting the accused persons as well as by the High Court while dismissing the appeal of the convicts. 2. On 18.12.2017, notice was issued to respondent No. 1/State. 3. State is represented by Ms. B. Bhuyan, learned Addl. Public Prosecutor, Assam. 4. Applicant, as the informant, had lodged one first information before the Jagiroad Police Station to the effect that his son, Arup Dutta, was missing. Initially, the case was registered as Jagiroad PS Case No. 98/2011, under Sections 365/384 IPC. In the course of investigation, the three accused persons, namely, Sri Sanjay Chandra, Sri Bhim Das @ Susanka and Sri Mohan Teron were arrested and the dead body of the son was recovered whereafter, Section 302 IPC was added. Following trial, learned Sessions Judge, Morigaon, vide judgment and order dated 21.04.2015 in Sessions Case No. 27/2013 had convicted the three accused persons under Sections 302/34 IPC for committing the murder of applicant's son. Holding the case to be one belonging to the rarest of rare case category, learned Sessions Judge imposed capital punishment on the three accused persons. 5. Reference was made for confirmation of death sentence, being Death Sentence Reference No. 01/2015, which was heard along with the criminal appeal filed by the three convicted accused persons i.e., Crl. Appl. No. 159/2015. The death reference and the appeal were heard together and by a common judgment and order dated 27.10.2017, a Division Bench of this Court took the view that the case in hand did not fall in the category of rarest of rare case. While upholding the conviction of the three accused persons under Sections 302/34 IPC, the Division Bench altered the sentence from death to rigorous imprisonment for life. 6. We have perused the judgment of the learned Sessions Judge as well as the judgment of the appellate court. While upholding the conviction of the three accused persons under Sections 302/34 IPC, the Division Bench altered the sentence from death to rigorous imprisonment for life. 6. We have perused the judgment of the learned Sessions Judge as well as the judgment of the appellate court. We notice that there was no reference to the provision of Section 357-A of the Code of Criminal Procedure (Cr.P.C.) which was inserted in the Cr.P.C. by amendment made in the year 2009 w.e.f. 31.12.2009 at both the stages of trial and appeal. Section 357-A Cr.P.C. is extracted hereunder:- "Section 357-A. 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 Service 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." 7. The rationale behind insertion of Section 357-A is to compensate the victim or his dependents who have suffered loss or injury as a result of the crime and who requires rehabilitation. Victim compensation under Section 357-A Cr.P.C. is conceptually and fundamentally distinguishable from compensation under Section 357 Cr.P.C. Compensation under Section 357 Cr.P.C. is paid to the victim from the fine imposed on the accused as part of the sentence. On the other hand, under Section 357-A Cr.P.C., every State Government is mandated to prepare victim compensation scheme in coordination with the Central Government to provide funds for the purpose of compensation to the victim or his dependents who have suffered crime. Though under sub-section (2) of Section 357-A Cr.P.C., it is the District Legal Service Authority or the State Legal Services Authority who have been entrusted with the function to determine the quantum of compensation to be awarded on recommendation made by the Court, we have been informed that Commissioner & Secretary to the Government of Assam, Political (A) Department had issued notification dated 18.10.2012 framing the Assam Victim Compensation Scheme, 2012, which was subsequently, amended on 15.07.2014 and 05.03.2016 providing for a schedule of compensation in tune with the Central Victim Compensation Fund Guidelines dated 14.10.2015 framed by the Government of India, Ministry of Home Affairs. The Central Victim Compensation Fund Guidelines provide for setting up of an initial corpus of Rs. 200 crores to be sanctioned by the Ministry of Finance, Government of India to be provided as one time budgetary grant which would be supplemented from time to time with option of receiving contribution from the public. The objective of setting up of the Central Victim Compensation Fund is to support and supplement the existing Victim Compensation Schemes notified by the States/Union Territories. As per the central scheme, the minimum amount of compensation in the case of death is Rs. 2 lakhs. In parity with the central scheme, Government of Assam, as noticed above, has amended the Assam Victim Compensation Scheme, 2012 vide Government notification dated 5.3.2016 providing for compensation of Rs. 2 lakhs in the case of death. 8. In Suresh Vs. As per the central scheme, the minimum amount of compensation in the case of death is Rs. 2 lakhs. In parity with the central scheme, Government of Assam, as noticed above, has amended the Assam Victim Compensation Scheme, 2012 vide Government notification dated 5.3.2016 providing for compensation of Rs. 2 lakhs in the case of death. 8. In Suresh Vs. State of Haryana, reported in (2015) 2 SCC 227 , Supreme Court while hearing a criminal appeal also examined the various facets of victim compensation as provided under Section 357-A Cr.P.C. That was a case of abduction and murder of two members of the same family, that is, father and son, Devender Chopra and Abhishek Chopra. While dismissing the appeal preferred by the convicted accused, Supreme Court made a detailed analysis of the aforesaid provision and observed that the object and purpose of the provision is to enable the Court to direct the State to pay compensation to the victim where the compensation under Section 357 was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated. Referring to Ankush Shivaji Gaikwad Vs. State of Maharashtra, reported in (2013) 6 SCC 770 , where it was observed that a long line of judicial pronouncements of the Supreme Court recognised in no uncertain terms a paradigm shift in the approach towards victims of crime who were held entitled to reparation, restitution or compensation for loss or injury suffered by them, Supreme Court held as under:- "15. We are informed that 25 out of 29 State Governments have notified victim compensation schemes. The schemes specify maximum limit of compensation and subject to maximum limit, the discretion to decide the quantum has been left with the State/District Legal Authorities. It has been brought to our notice that even though almost a period of five years has expired since the enactment of Section 357-A Cr.P.C., the award of compensation has not become a rule and interim compensation, which is very important, is not being granted by the courts. It has also been pointed out that the upper limit of compensation fixed by some of the States is arbitrarily low and is not in keeping with the object of the legislation. 16. It has also been pointed out that the upper limit of compensation fixed by some of the States is arbitrarily low and is not in keeping with the object of the legislation. 16. We are of the view that it is the duty of the courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the court ought to direct grant of interim compensation, subject to final compensation being determined later. Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. At the stage of final hearing, it is obligatory on the part of the court to advert to the provision and record a finding whether a case for grant of compensation has been made out and, if so, who is entitled to compensation and how much. Award of such compensation can be interim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances of an individual case. 17. 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 the receipt of a copy of this order. 18. 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. 19. In the present case, the impugned judgment shows that the de facto complainant, PW 2 Raman Anand, filed Criminal Revision No. 1477 of 2004 for compensation to the family members of the deceased Devender Chopra and his son Abhishek Chopra. The same has been dismissed by the High Court without any reason. 19. In the present case, the impugned judgment shows that the de facto complainant, PW 2 Raman Anand, filed Criminal Revision No. 1477 of 2004 for compensation to the family members of the deceased Devender Chopra and his son Abhishek Chopra. The same has been dismissed by the High Court without any reason. In fact even without such petition, the High Court ought to have awarded compensation. There is no reason as to why the victim's family should not be awarded compensation under Section 357-A Cr.P.C. by the State. Thus, we are of the view that the State of Haryana is liable to pay compensation to the family of the deceased. We determine the interim compensation payable for the two deaths to be rupees ten lakhs, without prejudice to any other rights or remedies of the victim's family in any other proceedings. 20. Accordingly, while dismissing the appeal, we direct that the widow of Devender Chopra, who is the mother of the deceased Abhishek Chopra representing the family of the victim be paid interim compensation of rupees ten lakhs. It will be payable by the Haryana State Legal Services Authority within one month from the receipt of a copy of this order. If the funds are not available for the purpose with the said Authority, the State of Haryana will make such funds available within one month from the date of the receipt of a copy of this judgment and the Legal Services Authority will disburse the compensation within one month thereafter. The appeal stands disposed of accordingly." 9. Thus, while holding that payment of interim compensation is very important, Supreme Court held that it is obligatory on the part of the Court to advert to the provision of Section 357-A Cr.P.C. at the stage of final hearing 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. 10. Supreme Court also noted that upper limit of compensation fixed by some of the States is arbitrarily low and is not keeping with the object of the legislation. 10. Supreme Court also noted that upper limit of compensation fixed by some of the States is arbitrarily low and is not keeping with the object of the legislation. Reference was made to the scheme prepared by the State of Kerala whereafter, the Supreme Court opined that there is need to consider upward revision in the scale of 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. In the facts of that case and considering the murder of two persons belonging to the same family, direction was issued to the Haryana State Legal Services Authority to pay interim compensation of Rs. 10 lakhs to the widow of Devender Chopra. Regarding award of just compensation to the victim, Supreme Court in Manohar Singh Vs. State of Rajasthan, reported in (2015) 3 SCC 449 , held as under:- "11. Just compensation to the victim has to be fixed having regard to the medical and other expenses, pain and suffering, loss of earning and other relevant factors. While punishment to the accused is one aspect, determination of just compensation to the victim is the other. At times, evidence is not available in this regard. Some guess work in such a situation is inevitable. The compensation is payable under Sections 357 and 357-A Cr.P.C. While under Section 357 Cr.P.C., financial capacity of the accused has to be kept in mind, Section 357-A Cr.P.C. under which compensation comes out of the State funds, has to be invoked to make up the requirement of just compensation." 11. Referring to the decision in Suresh (supra), Supreme Court in the subsequent decision in State of MP Vs. Mehtaab, reported in (2015) 5 SCC 197 , held that the scheme adopted by the State of Kerala is applicable to all the States and the said scheme provides for compensation upto Rs. 5 lakhs in the case of death. 12. While respectfully agreeing with the sentiments expressed by the Supreme Court in the case of Suresh (supra), we are of the view that the quantum of compensation fixed by the State of Assam, vide notification dated 5.3.2016, particularly in the case of death, following the Central Victim Compensation Fund Guidelines, appears to be on the lower side. 12. While respectfully agreeing with the sentiments expressed by the Supreme Court in the case of Suresh (supra), we are of the view that the quantum of compensation fixed by the State of Assam, vide notification dated 5.3.2016, particularly in the case of death, following the Central Victim Compensation Fund Guidelines, appears to be on the lower side. There is need for upward revision of the quantum of compensation in case of death. We hope and trust that Government of Assam in the Political(A) Department will do all that is necessary to take a logical view and consider upward revision of the quantum of compensation, particularly in the case of death. 13. Coming to the present case, we find that the victim was a young boy of 18 years. He was lured by his two acquaintances whereafter, the third accused joined and the dastardly murder was committed. Family members of the victim, including the applicant, were not informed about the murder though a demand for payment of ransom was made. Though the death of a near or dear one cannot certainly be measured in terms of money, having regard to the object behind insertion of Section 357-A Cr.P.C. as explained by the Supreme Court in Suresh (supra) and Manohar Singh (supra), we feel mat any amount of monitory compensation would only act as a balm to the distressed parents of the deceased. 14. That being the position and following the decision of the Supreme Court in Suresh (supra) and Mehtaab (supra), we direct that an amount of Rs. 5 lakhs be paid to the applicant by the Assam State Legal Services Authority within a period of 2 months from the date of receipt of a certified copy of this order. While releasing the payment, Member Secretary, Assam State Legal Services Authority shall ensure that mother of the victim is taken into consideration. Assam State Legal Services Authority may also take up the matter regarding upward revision of the quantum of compensation with the State Government in the Political (A) Department. 15. Interlocutory application is accordingly disposed of. A copy of this order be furnished to Ms. B Bhuyan, learned Addl. Public Prosecutor, Assam for doing the needful.