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Gujarat High Court · body

2023 DIGILAW 1125 (GUJ)

UMESH SHANKAR PRAJAPATI v. STATE OF GUJARAT

2023-11-02

J.C.DOSHI

body2023
JUDGMENT : (J. C. Doshi, J.) Rule. Learned APP waives service for Respondent No.1 and learned Advocate Ms. Calla waives for Respondent No.3. Though served, none appears for Respondent No.2-original accused. 1. In article titled as ‘Introduction, History and Conceptual Foundations’, published in ‘International Handbook of Multigenerational Legacies of Trauma’, the author Y. Danieli, underscores the value of victim compensation programme in outlining goals and recommendations for the victims of human rights abuse and as such, onset the primary goal as reestablishment of the victim’s value, power and dignity through reparation, accomplished by compensation, both real and symbolic. Aforesaid goal can be achieved when victim compensation programme serves as source of acknowledgment and validation when victims’ are treated compassionately. 2. By way of this petition, filed under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the judgment and order dated 31.08.2021, passed by the learned 2nd Additional Sessions & Special POCSO Judge, Anand (in brief, ‘Court below’), in Criminal Misc. Application No. 944 of 2021, whereby, the Court below granted the compensation of Rs.1,00,000/- under Rule 9(2) of the Protection of Children from Sexual Offences Rules, 2020 (herein after, ‘POCSO Rules’), towards interim compensation with a further direction to release the same, after adjusting any other amount received by the victim, except, the benefit obtained under Mukhyamantri Amrutam Youjna ( ‘MA Scheme’, in brief). 3. The facts leading to the filing of the present petition can briefly be stated as the petitioner-original complainant is the father of the victim girl. The original accused-Respondent No.2 herein as well as the complainant are residing in the same locality. On the fateful day of 09.12.2020, when the victim wake-up to answer the natural call in wee hours, Respondent No.2 intercepted the victim, who was minor at the relevant point of time, near the gate of her house and asked her to have relationship with her, when the victim denied, Respondent No.2 got enraged and dragged her to some distance and forcefully made her drink acid, which he had brought in a bottle. Respondent No.2 then fled the scene of offence, leaving behind the victim in feeble and vulnerable condition. Then the victim returned to her home. In the meantime, the petitioner and other family members had woken-up and since they did not find the victim at home, they searched her outside home. Respondent No.2 then fled the scene of offence, leaving behind the victim in feeble and vulnerable condition. Then the victim returned to her home. In the meantime, the petitioner and other family members had woken-up and since they did not find the victim at home, they searched her outside home. On finding the victim, when the petitioner asked her as to what had happened, the victim could not reply, as she was under tremendous mental and physical trauma and she became unconscious. The victim was therefore taken to Sri Krishna Hospital at Karamsad, where, doctor operated her to treat her injuries. 3.1 The victim regained consciousness on 14.12.2020, i.e. after about four days from the date of incident, whereupon she narrated the entire incident to the petitioner, who registered the FIR bearing No. 11215002210054 of 2021 for the offence punishable under Sections 326(A) of the Indian Penal Code and Sections 11(1) of the Protection of Children from Sexual Offences Act, 2012 (in short, ‘POCSO Act’). 3.1.1 Pursuant to the registration of the FIR, the concerned IO carried out the investigation and filed the charge-sheet against Respondent No.2, which came to be registered as Special POCSO Case No. 20 of 2021. 3.2 As a result of the acid attack, the victim has to undergo prolonged medical treatment at different hospitals, which includes Exploratory Laparotomy with Pertomcal Lavage with repair of Necrotic Stomach Patch with Feeding Jejunostomy,, gastronomy and left side ICD insertion. The victim had to remain as indoor patinent in Sri Krishna Hospital, Karamsad, for about one and a half month. She also had to undergo treatment for lower part of esophagus. 3.3 It is the grievance of the petitioner that though all these aspects came to the notice of the Court below, it did not exercise suo motu powers to grant compensation to the victim under the Gujarat Victim Compensation Scheme, 2019 (‘Scheme of 2019’, herein after). Therefore, the petitioner preferred Criminal Misc. Application No. 944 of 2021, under Section 357 of the Code of Criminal Procedure, 1973, and under Section 9(1)(2) of the Victim Compensation Act, before the Court below, which came to be partly allowed vide order dated 31.08.2021, directing to grant Rs.1,00,000/- towards interim compensation, as provided under Rule 9(2) of the Rules of 2020 with a further direction, as referred to in Paragraph-2 herein above. Hence, the petitioner is before this Court, seeking following reliefs; “18. … A) That the Hon’ble Court be pleased to quash and set aside order dated 31.08.2021 passed by the 2nd Additional Sessions & Special POCSO Judge, Anand, in Criminal Misc. Application No. 944 of 2021 and grant appropriate interim compensation; B) That pending the hearing and final disposal of the present petition, the Hon’ble Court be pleased to issue appropriate writ, order or direction for award and disbursement of the applicable minimum mandatory compensation to be paid under the Gujarat Victim Compensation Scheme, 2019; C) For ad-inter relief in terms of prayer (B); (D) For costs; (E) ...” 4. The Coordinate Bench of this Court passed following order on 12.04.2023; “Leave to join the Gujarat State Legal Services Authority, Ahmedabad, as respondent no.3. Notice to the respondents, returnable on 22.06.2023. Learned APP waives service of notice for and on behalf of Respondent-State.” 4.1 In the above facts and circumstances, the Gujarat State Legal Services Authority has been joined as party Respondent No.3 and learned Advocate Ms. Calla represent newly joined Respondent No.3. 5. Learned Advocate Ms. Patel appearing for the petitioner assailed the impugned order and would submit that the learned Special Judge has totally misread the object, ambit and scope of the Rules of 2020. She would further submit that in fact in view of the above provisions the Court below was under the duty to assess compensation issue suo motu but in the present case, the Court below undertaken the issue in the proceedings, when the proceedings were initiated by the father of the victim and for the strange reason did not believe that the victim has suffered any injury for the offence punishable under Section 326A of the IPC, as alleged in the FIR in question. It is submitted that such an approach on the part of the Court below to assess the compensation was totally insensitive and prejudicial to the very purpose and object of the Scheme of 2019. It was further submitted that in total victim was required to be paid initial compensation to the tune of Rs.4,50,000/-, as she was minor, at the time of incident, and she is a victim of acid attack and of physical sexual assault. It was submitted that the Court below has completely misread the provisions of Rule 9 of Rules of 2020. It was submitted that the Court below has completely misread the provisions of Rule 9 of Rules of 2020. Lastly it is sought to be submitted that failure on the part of Court below has caused great injustice to the victim and such as, miscarriage of justice arrived at. 5.1 Above submission is canvassed to modify the impugned order and to pass necessary orders for granting the compensation as per the Rules of 2020. 6. Learned APP Mr. Antani appearing for Respondent No.1-State and learned Advocate Ms. Call appearing for Respondent No.3 joined the arguments of the learned Advocate for the petitioner Ms. Patel and would submit that an error has been committed by the Court below in arriving at the conclusion and assessing the compensation. 6.1 Learned Advocate Ms. Call appearing for Respondent No.3 would submit that very technical approach is taken by the Court below, which eventually evaded the very object of the Scheme of 2019. She also submitted that this is a fit case to grant the compensation available under the Scheme of 2019. 7. At the outset, on perusal of the impugned order it appears that the Court below has fallen into an error by assessing the compensation, as if it is taking a decision in adversarial litigation. The Court below has noted that various amounts have been received from the various schemes of the Government by the petitioner and therefore the petitioner is not entitled for the compensation for medical need. The Court below has also fallen into an error by holding that since no visible facial injury is sustained by the victim as a result of the alleged acid attack, the case cannot be considered for compensation as victim of acid attack. Such findings recorded by the Court below are totally erroneous and against the very purpose and object of the Scheme of 2019. Moreover, the Court below instead of deciding the matter, by keeping in mind the provisions of Rule 9 of the Rules of 2020, proceeded to decide the matter as the adversarial litigation. The findings recorded by the Court below are totally contrary to the Scheme of 2019 and the impugned order is as hard as nail and lack compassion. It could be noticed that grant of paltry amount as compensation is in consideration of the physical and mental trauma faced by victim. It is no less than mockery of justice. The findings recorded by the Court below are totally contrary to the Scheme of 2019 and the impugned order is as hard as nail and lack compassion. It could be noticed that grant of paltry amount as compensation is in consideration of the physical and mental trauma faced by victim. It is no less than mockery of justice. 7.1 Firstly, the purpose and the idea behind granting the compensation under the Scheme of 2019 can be diluted to serve as a source of symbolic social recommendations for the victim suffering from mental and physical trauma and secondly, a need to respond to victim in just, expeditious and equitable manner. Victim needs for reconstructing their lives have been articulated as fourfold: financial, physical, emotional, and social. In terms of victim compensation, the first two needs overlap the later needs, since compensation may provide the financial resources to get the appropriate health and mental health treatment. Financial needs are perhaps the easiest to define, although they may represent one of the biggest issues for from a victim’s perspective in terms of equity and fairness. Yet, it is rare that a victim of crime does not suffer certain types of out-of-pocket costs. If the criterion of being a victim of a violent crime is met, then the following losses are routinely included: medical expenses and costs for rehabilitation; loss of earnings, income or support; funeral or burial costs; childcare and transportation costs; psychological counseling. 7.2 It can be perceived that the compensation is a right of the victim and is an obligation of the state to victim due to the lack of the ability of the state to protect, then that lack of protection is equal in all types of crime. 7.2 It can be perceived that the compensation is a right of the victim and is an obligation of the state to victim due to the lack of the ability of the state to protect, then that lack of protection is equal in all types of crime. Clause 8 of the Scheme of 2019 reads as under; “Factors to be considered while awarding Compensation - While deciding a matter, the State Legal Services Authority or, as the case may be District Legal Services Authority may take into consideration the following, factors relating to the loss or injury suffered by the victim: (a) Gravity of the offence and severity of mental or physical harm or injury suffered by the victim; (b) Expenditure incurred or likely to be incurred on the medical treatment for physical and/or mental health including counselling of the victim, funeral, travelling during investigation/ inquiry/ trial (other than dict money); (c) Loss of educational opportunity as a consequence of the offence, including absence from school/college due to mental trauma, bodily injury. medical treatment, investigation and trial of the offence, or any other reason; (d) loss of employment as a result of the offence, including absence from place of employment due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason; (e) The relationship of the victim to the offender, if any; (f) Whether the abuse was a single isolated incidence or whether the abuse took place over a period of time; (g) Whether victim became pregnant as a result of the offence, whether she had to undergo Medical Termination of Pregnancy (MTP) give birth to a child, including rehabilitation needs of such child; (h) Whether the victim contracted a sexually transmitted disease (STDY human immunodeficiency virus (HIV) as a result of the offence; (i) Any disability suffered by the victim as a result of the offence; (j) Financial condition of the victim against whom the offence has been committed so as lo determine victim's need for rehabilitation and reintegration needs of the victim, (k) In case of death, the age of deceased, monthly income, number of dependents of the victim, life expectancy, future promotional/growth prospects, educational opportunities of child of victim etc. However the victim shall not be entitled to get compensation in the case covered under the Fatal Accident Act, 1855 (3 of 1951), the Employee's Compensation Act, 1923(8 of 1923) and Motor Vehicles Act,1988(59 of 1988) and Railways Act, 1989(24 of 1989). (l) Any other factor which the State Legal Services Authority or, as the case may be, District Legal Services Authority may consider just and sufficient.” 7.3 It appears that the above factors are illustrative in nature but not comprehensive. The State Legal Services Authority or, as the case may be District Legal Services Authority, is empowered to decide any other factor. 7.4 The procedure for grant of compensation is envisaged in Clause 9 of the Scheme of 2019; which reads thus; “9. Procedure for Grant of Compensation- (1) Wherever. a recommendation is made by the court for compensation under sub-sections (2) and/or (3) of Section 357A of the Code or an application is made by any victim or dependent(s)/guardian/parents of the victim, under sub-section (4) of Section 357A of the Code to the State Legal Services Authority or, as the case may be, District Legal Services Authority, for interim compensation it shall prima-facie satisfy itself qua compensation needs and identity of the victim. As regards the final compensation, it shall examine the case and verify the contents of the claim with respect to the loss/injury and rehabilitation needs as a result of the crime and may also call for any other relevant information necessary for deciding the claim. Provided that in deserving cases and jin all acid attack cases, at any time after commission of the offence, the State Legal Services Authority or, as the case may be, District Legal Services Authority may suo-moto or after preliminary verification of the facts proceed to grant interim relief as may be required considering the circumstances of each case. (2) The inquiry as contemplated under sub-section (5) of Section 357A of the Code, shall be completed expeditiously and the period in no case shall exceed beyound sixty days from the receipt of the claim/petition or recommendations. Provided that in cases of acid attack an amount of Rs. One Lakh shall be paid to the victim within 15 days of the matter being brought to the notice of the District Legal Services Authority. Provided that in cases of acid attack an amount of Rs. One Lakh shall be paid to the victim within 15 days of the matter being brought to the notice of the District Legal Services Authority. The order granting interim compensation shall be passed by the District Legal Services Authority within 7 days of the matter being brought to its notice passing of such order. Thereafter, an amount of Rs. 2 lakhs shall be paid to the victim as expeditiously as possible within two months of the first payment. (3) Victims of Acid attack shall also be entitled to additional compensation of Rs. 1 lac under the ‘Prime Minister’s National Relief Fund’ and shall also be entitled to additional special financial assistance upto Rs. 5 lacs who need treatment expenses over and above the compensation paid by the Government, in accordance with the provisions of the Central Victim Compensation Fund Guidelines-2015. Provided that the victim may also be paid such further amount as is admissible under this Scheme. (4) As per direction given by Hon'ble Supreme Court in Writ Petition(Civil) No. 1542016, dated 17" July,2018 in the cases of mob violence lynching 30% of the amount of compensation decided as per schedule, by State Legal Service Authority or, as the case may be, the District Legal Service Authority shall be paid to the victim or dependent(s)/guardian/parents of the victim within 30 days of the matter being brought to the notice of said authority . Provided that in the cases of mab violence / lynching, SHO/SP/DCP shall mandatorily share soft/hard copy of FIR immediately after its -registration to the State Legal Services Authority or, as the case may be, the District Legal Services Authority. (5) If the victim is minor, the limit of compensation shall be deemed to be 50% higher than the amount mentioned in the Schedule appended to this Scheme. (6) The State Legal Services Authority or, as the case may be, District Legal Services Authority may call from any record or take assistance from any Authority Establishment /Individual/ Police/Court concerned or expert for smooth implementation of the Scheme. (6) The State Legal Services Authority or, as the case may be, District Legal Services Authority may call from any record or take assistance from any Authority Establishment /Individual/ Police/Court concerned or expert for smooth implementation of the Scheme. (7) After consideration of the matter, the State Legal Services Authority or, as the case may be, the District Legal Services Authority, on being satisfied, shall decide the quantum of compensation to be awarded to the victim or dependent(s)/guardian/parents of the Victim taking into account the factors enumerated in Clause 8 of the Scheme, as per schedule appended to this scheme. However, in deserving cases, for reasons to be recorded, the upper limit may be exceeded. (8) In case trial/appellate court gives Findings that the criminal complaint and the allegation were false. then the District Legal Services Authority may initiate proceedings for recovery of compensation, if any, granted in part or full under this Scheme, before the ‘Trial Court for its recovery as if it were a fine The amount, so recovered shall be deposited in Victim Compensation Fund, (9) Nothing in this Scheme shall prevent Victim or dependent(s)/guardian/parents of the Victim from instituting any Civil Suit or Claim against the perpetrator of offence or any other person indirectly responsible for the same.” 7.5 It is strange to notice that though in the present case, Respondent No.2-the accused is charged with the commission of offence punishable under Section 326A of the IPC, the Court below has observed that the victim has not suffered any injury, which has been defined to grant compensation for acid attack. 7.6 At this stage, it would be relevant to refer to the document at Annexure-E, which is the OT Note issued by Shree Krishna Hospital & Medical Research Centre, Karamsad, which indicates that the following procedures were done on the victim; “PROCEDURE: EXPLORATORY LAPAROTMOY WITH PERITONEAL LAVAGE WITH REPARI OF NECROTIC STOMACH PATCH WITH FEEDING JEJUNOSTOMY, GASTROSTOMY AND LEFT SIDE ICD INSERTION DONE UNDER GA BY DR KIRAN PATEL AND DR MIRANT DOSHI ON 10.12.2020.” 7.7 Further, the CT scan of the victim, which is produced at Page-42 to this petition, reveals that; “CT MEDIATINUM, CHEST WALL AND ABDOMEN: Stomach is partially distended and entirely appears heterogeneous with multiple air foci within, suggest possibility of post acid ingestion slough formation. The wall of stomach appears normal. The wall of stomach appears normal. There is no evidence of hyperdense collection in stomach or perigastric region to suggest contrast extravasation.” 7.8 The above injuries are sufficient enough to show that the victim suffered such injuries due to acid attack. Thus, there is total misconception on the part of the Court below that the victim has not suffered any injury due to acid attack and the same is a complete error. 7.9 Sub-Clause (2) of Clause 9 of the Scheme of 2019, read with sub-Section (5) of Section 357 of the Code, provides for Rs.1,00,000/- compensation in case of acid attack within 15 days from and Rs.2,00,000/- to be paid within two months from the date of the first payment, after a brief inquiry is conducted by the concerned District Legal Services Authority. In the present case, the victim has suffered not only acid attack but also sexual assault at the hands of Respondent No.2-accused and therefore, the Court below was required to assess the compensation in view of the provisions of the POCSO Act. 7.10 Section 33 of the POCSO Act, read with Clause 9 of the Scheme of 2019, provides that in case of offences under the POCSO Act, the concerned Special Judge is duty bound to grant compensation envisaged in Scheme of 2019 in accordance with Rules of 2020. 7.11 Sub-Clause (5) of Clause 9 of the Scheme of 2019 provides that if the victim is minor, the limit of compensation shall be deemed to be 50% higher than the amount mentioned in the Schedule appended to this Scheme. This would entitle the victim for getting compensation to the tune of Rs.4,50,000/-, as per Clause 9 of the Scheme of 2019. 7.11.1 Learned Advocate Ms. Call appearing for Respondent No.3 fairly submitted that they do not dispute the aforesaid position of law and therefore, they would see that the victim gets the aforesaid amount of compensation. 7.12 The Court below, while assessing the need for granting compensation to the victim, completely misread the provisions of Clause 13 of the Scheme of 2019, which provides that the benefit of MA Scheme is an additional benefit and that while granting the amount of compensation, the benefit availed under the MA Scheme is not to be taken into consideration. 7.12 The Court below, while assessing the need for granting compensation to the victim, completely misread the provisions of Clause 13 of the Scheme of 2019, which provides that the benefit of MA Scheme is an additional benefit and that while granting the amount of compensation, the benefit availed under the MA Scheme is not to be taken into consideration. 7.13 For the foregoing reasons, the impugned order is found to be totally against the provisions and the objects of the Scheme of 2019 and therefore, the impugned order needs to be modified. 7.14 Although, it is not argued by the learned APP for Respondent No.1-State and the learned Advocate for Respondent No.3-authority that appeal is provided under Clause1 18 of the Scheme of 2019 and the same would operate as a bar qua the maintainability of the present petition, it would be relevant to refer to the observations made by the Hon’ble Apex Court in ‘M/s. Godrej Sara Lee Ltd. Vs. Excise and Taxation Officer-cum-Assessing Authority’, 2023 (0) AIR (SC) 781, wherein, it is stated that availability of alternative remedy does not operate as an absolute bar to ‘Maintainability’ of a writ petition and that rule, which requires a party to pursue alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Thus, in the above background, when the victim had to run from pillar to post for getting appropriate amount towards interim compensation, this writ-petition is held to be maintainable. 8. In view of the above, this petition is partially allowed and the following order is passed; (1) The impugned order dated 31.08.2021 passed by the Court below is modified to the extent that the victim shall be granted Rs.4,50,000/- towards interim compensation, which shall be paid by the District Legal Services Authority, Anand, in consultation with the Gujarat State Legal Services Authority, Ahmedabad, within the time-limit specified in the Scheme of 2019; (2) While so doing, the amount, if any, has already been paid to the victim at earlier point of time, the same shall be deducted from the above amount; Rule is made absolute, accordingly. Direct service is permitted.