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2019 DIGILAW 420 (GAU)

Abdul Mannan v. State of Assam

2019-04-03

UJJAL BHUYAN

body2019
ORDER : UJJAL BHUYAN, J. 1. Heard Mr. M. Hussain, learned counsel for the petitioner and Ms. M.D. Bora, learned Govt. Advocate, Assam. 2. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to pay an amount of Rs. 5 lakhs to him as victim compensation for the death of his son in terms of Assam Victim Compensation Scheme, 2012, as amended. 3. Case of the petitioner is that his son Nur Islam went missing on and from 04.08.2011. On 1.9.2011, dead-body of Nur Islam was recovered from the jungle. This has reference to Bilasipara Police Station Case No. 549/2011 registered under Sections 302/201 IPC. 4. On conclusion of investigation, police submitted charge-sheet against 7 accused persons on the basis of which Sessions Case No. 170/2014 (State Vs. Jiarul Hoque and 6 others) was registered and tried in the Court of Additional Sessions Judge, Barpeta. Ultimately, by judgment and order dated 10.10.2018, accused Jiarul Hoque was convicted under Sections 302/201 IPC and sentenced to undergo rigorous imprisonment for life and to pay fine with a default clause. 5. Learned Additional Sessions Judge also observed that next of kin of the deceased would be entitled to victim compensation under the Victim Compensation Scheme. Secretary, District Legal Services Authority, Dhubri was called upon to find out next of kin of the deceased entitled to compensation as well as the quantum of compensation. 6. With the grievance that notwithstanding such order of the Additional Sessions Judge no steps were taken by the District Legal Services Authority, Dhubri for payment of compensation, present writ petition has been filed. 7. On 13.3.2019, learned Govt. Advocate was directed to obtain instruction from Assam State Legal Services Authority. 8. Today when the matter is called upon, Ms. Bora submits that as per instructions received by her, District Legal Services Authority, Dhubri has already started process to pay compensation and in this connection had issued notice to the petitioner on 26.3.2019 for appearance on 1.4.2019. 9. Submissions made have been considered. 9.1. 8. Today when the matter is called upon, Ms. Bora submits that as per instructions received by her, District Legal Services Authority, Dhubri has already started process to pay compensation and in this connection had issued notice to the petitioner on 26.3.2019 for appearance on 1.4.2019. 9. Submissions made have been considered. 9.1. Section 357A of the Code of Criminal Procedure, 1973 reads as under:- "Section 357-A. Victim Compensation Scheme- (1) Every State Government in coordination 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 subsection (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 subsection (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." 10. Section 357A of the Code of Criminal Procedure, 1973 (Cr.PC) provides for victim compensation scheme. Section 357A of the Code of Criminal Procedure, 1973 (Cr.PC) provides for victim compensation scheme. As per Sub-Section (1), every State Government in coordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependants who have suffered loss or injury as a result of the crime and who requires rehabilitation. Under Sub-Section (2) whenever a recommendation is made by the Court for compensation, District Legal Services Authority or State Legal Services Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme. 11. Sub-Section (3) provides that if trial court on completion of the trial is satisfied that compensation awarded under Section 357 is not adequate for such rehabilitation or where the case ends in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation. Where the offender is not traced or identified but the victim is identified and where no trial takes place, the victim or dependants may make an application under Sub-Section (4) to the State Legal Services Authority or District Legal Services Authority for award of compensation. Sub-Section (5) provides that on receipt of such recommendation or application, State Legal Services Authority or District Legal Services Authority shall after due enquiry, award adequate compensation by completing enquiry within two months. 12. Under Sub-Section (6), State Legal Services Authority or District Legal Services Authority, as the case may be, to alleviate the sufferings 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 Officer-in-Charge or a Magistrate of the area concerned or any other interim relief as the appropriate authority deems fit. 12.1. Having discussed Section 357A Cr.PC, Section 357 Cr.PC may now be adverted to. 13. 12.1. Having discussed Section 357A Cr.PC, Section 357 Cr.PC may now be adverted to. 13. Under Section 357 Cr.PC also, Court while sentencing the accused person upon conviction imposes a sentence of fine or a sentence which may include a sentence of death, of which fine forms a part, order the whole or any part of the fine recovered from the convict to be applied in defraying the expenses properly incurred in the prosecution or 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 or in the following circumstances:- (1) 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; (2) When any 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 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. (3) 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. (4) 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. (5) 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) 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. (6) 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. 14. A careful and comparative analysis of the provisions of Section 357 and 357A Cr.PC would go to show that the two sections are independent of each other. 15. As a matter of fact, in Apu Dutta Vs. State of Assam, 2018 (2) GLT 385, a Division Bench of this Court explained that the rationale behind insertion of Section 357A 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 357A Cr.PC is conceptually and fundamentally distinguishable from compensation under Section 357 Cr.PC. Compensation under Section 357 Cr.PC is paid to the victim from the fine imposed on the accused as part of the sentence. On the other hand, as noticed above, under Section 357A Cr.PC, 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 the crime. It was held thus:- "8. 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 CrPC is conceptually and fundamentally distinguishable from compensation under Section 357 CrPC. Compensation under Section 357 CrPC 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 CrPC, 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. On the other hand, under Section 357-A CrPC, 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 subsection (2) of Section 357-A CrPC, 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 15.7.2014 and 5.3.2016 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 05.03.2016 providing for compensation of Rs. 2 lakhs in the case of death." 16. In Apu Dutta (supra), the Division Bench examined several decisions rendered by the Supreme Court on various facets of victim compensation, including on the point of payment of interim compensation. 17. At this stage, it may be mentioned that State of Assam has framed a scheme called Assam Victim Compensation Scheme, 2012 under Section 357A Cr.PC whereunder in case of death, maximum limit of compensation for rehabilitation was quantified at Rs. 2 lakhs. 18. In Apu Dutta (supra), Division Bench after surveying the law on victim compensation observed that quantum of compensation fixed by the State of Assam as above appeared to be on the lower side particularly in the case of death. 2 lakhs. 18. In Apu Dutta (supra), Division Bench after surveying the law on victim compensation observed that quantum of compensation fixed by the State of Assam as above appeared to be on the lower side particularly in the case of death. It was mentioned that there was need for upward revision of the quantum of compensation in the case of death. Division Bench had expressed the hope and trust that Government of Assam in the Political (A) Department would do all that was necessary to take a logical view and consider upward revision of the quantum of compensation particularly in the case of death. In the facts and circumstances of that case, Division Bench directed that an amount of Rs. 5 lakhs be paid to the next of kin of the victim by Assam State Legal Services Authority. Relevant portion of the judgment and order in Apu Dutta (supra) reads as under:- "9. 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 CrPC. 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. 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 CrPC, the award of compensation has not become a rule and interim compensation, which is very important, is not being granted by the courts. It has also been pointed out that the upper limit of compensation fixed by some of the States is arbitrarily low and is not in keeping with the object of the legislation. 16. We are of the view that it is the duty of the courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the court ought to direct grant of interim compensation, subject to final compensation being determined later. Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. At the stage of final hearing, it is obligatory on the part of the court to advert to the provision and record a finding whether a case for grant of compensation has been made out and, if so, who is entitled to compensation and how much. Award of such compensation can be interim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances of an individual case. 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. 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. 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 CrPC 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." 10. 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 CrPC 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. 11. 11. 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 CrPC. While under Section 357 CrPC, financial capacity of the accused has to be kept in mind, Section 357-A CrPC under which compensation comes out of the State funds, has to be invoked to make up the requirement of just compensation." 12. 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. 13. 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. 13. 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. 14. 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 CrPC as explained by the Supreme Court in Suresh (supra) and Manohar Singh (supra), we feel that any amount of monitory compensation would only act as a balm to the distressed parents of the deceased. 15. 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." 19. It is heartening to find that Government of Assam in the Political (A) Department thereafter issued notification dated 1.2.2019 further amending the schedule of Assam Victim Compensation Scheme, 2012 revising the quantum of compensation awarded in the said scheme. In case of death, amount of compensation is Rs. 5 lakhs. 20. It is heartening to find that Government of Assam in the Political (A) Department thereafter issued notification dated 1.2.2019 further amending the schedule of Assam Victim Compensation Scheme, 2012 revising the quantum of compensation awarded in the said scheme. In case of death, amount of compensation is Rs. 5 lakhs. 20. That being the position, District Legal Services Authority, Dhubri shall take up the claim of the petitioner for victim compensation under Section 357A Cr.PC and after due enquiry, decide the quantum of compensation to be awarded in terms of the Government notification dated 01.02.2019 within a period of two months from the date of receipt of a certified copy of this order. 21. This disposes of the writ petition.