THE VERY IMPORTANT TOPIC OF JURISPRUDENCE THAT IS COMPENSATORY JURISPRUDENCE. WITH ALL THE APPLIED LEGAL PROVISIONS AND CASES

1. BY:-RAHUL GAUR

2.  It has been observed that the administration of criminal justice
remained generally unsatisfactory from the point of view of the victims
of crime.
 The basic object of the Criminal Justice is to protect the society against
crime and to punish the offender.
 However, Criminal Justice System does not show equal concern to the
victims of crime, who have suffered loss or injury. The satisfaction the
victims get from justice is the punishment inflicted upon the criminal.
 The object of the punishment is not merely to shelter and reform the
criminals but there is need for safeguarding the interests of the victims
also.
 To maintain the law and order in the society, the civilized state does not
allow a victim to take the law in his hands either to punish the
wrongdoer or re-compensate the loss suffered or injury sustained.
 Compensatory jurisprudence as new part of criminal law is fast
developing as it serves two purposes,
- firstly, a victim is not lost sight of in the criminal justice system and
- secondly, an accused convicted is made to realize that he has a duty
towards those injured by his actions.

3.  The principle of compensation for victims of crime
occupied a prominent place in mosaic law and the
Penal Codes of ancient Greece and Rome. In the Penal
Code of Solon (Athens) a thief had to forfeit twice the
value of the articles stolen to the victims as well as to
the public treasury.
 The Roman Law specified progressive rise in
compensation payable depending upon the stage of
nature of the crime. Apart from theft, assault, libel
and trespass were other offences in which
compensation was payable.
 The demand for compensation for the victims of
crimes was revived during the Penal reforms
movement of the 19th Century. Some penal
philosophers strongly advocated for compensation
and restitution to the victim.

4. How compensatory jurisprudence
has developed in India ?

5. Various Reports of Law Commission of India as
well of Committees on Reforms of Criminal
Justice administration have played a pivotal role
in developing compensatory jurisprudence in
India.
 The Law commission of India in its submitted
Reports on the Indian Penal Code,1860 (IPC)and
 the Code of Criminal Procedure,1898 and of
1973 has deliberated upon the issue of justice to
victims of crime and has also suggested some
proposals for reform.

6.  42nd Report of Law Commission, 1971-
Recommendation Regarding Compensation
under Indian Penal Code, 1860
 156th Report of Law Commission, 1997
 226th Report of Law Commission, July 2009,
Recommendation Regarding Compensation
under Indian Penal Code, 1860

7. some of the western countries like Finland,
France, Israel, Japan, Norway and United states
and other countries the compensation to victims
of crime is being given by the state.
 In USA compensation is being given by the state
as well as by the offender.
 In Austria and Belgium the offender has to
compensate the victim of crime.
 In some countries like Columbia, Germany,
Switzerland, Ireland, Czech Republic the law does
not specify whether the compensation is being
given by the state or by the accused.

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

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

10.  Power of Court to Pay Compensation on
Conviction
 Compensation to the Persons Groundlessly
Arrested
 Order to Pay Costs in Non-Cognizable Cases
 Compensation for accusation without
reasonable cause.
“ After section 357 of the principal Act,
Section 357A has been inserted”

11. How judiciary has contributed
to development of law on
compensation to victims in
India?

12.  Khatri vs. State of Bihar
Popularly Known as the bhagalpur blinding case
Justice Bhagawti countered the question of
compensation. Why should the court not be
prepared to forge new tools and devise new
remedies for the purpose of indicating the most
precious fundamental Right to life and personal
liberty? Anew interpretation was accorded to
Article 32 and Article 21 of the constitution, the
court ordered the state to meet the expenses of
housing those men in Blind homes in Delhi.

13. Rudal Shah vs. State of Bihar
Observed that in the exercise of its jurisdiction
under Article 32, payment of money in the nature
of compensation consequential upon the
deprivation of a Fundamental Right to life and
liberty of a petitioner. The court further observed
that Article 21 which guarantees the right and
liberty will be denuded of its significant content
if the power of the Supreme Court were limited to
passing order of release from illegal detention &
compensation was granted of Rs 35,000 only.

14. the Supreme Court observed that when a person comes to
this Court with a complaint that he has been arrested and
imprisoned with mischievous or malicious intent and that
his constitutional and legal rights were invaded, the
mischief or malice and the invasion may not be washed
away or wished away by his being set free. In appropriate
cases the court has the jurisdiction to compensate the
victim by awarding suitable monetary compensation. The
Supreme Court further said that where a member of the
Legislative Assembly was arrested while enroute to seat of
Assembly and in consequence the member was deprived
of his constitutional right to attend the Assembly Session
and responsibility for arrest laid with higher echelons of
the Government and award of compensation amounting to
Rs. 50,000/-.

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

16. A Bangladeshi woman was gang raped by Indian
Railway employees in a railway building. In this case,
the Supreme Court awarded as sum of Rs. 10 lakh as
compensation to the victim, though she was not a
citizen of India°' The court observed when public
functionaries are involved and the matter relates to
the violation of Fundamental Right or the
enforcement of public duty, the remedy would still be
available under the public law notwithstanding that a
suit could be filed for damages under private law
also. The court rightly rejected the argument that the
victim was a foreign national and therefore no
Fundamental Right is available to her. Right to life
and personal liberty under Article 21 is not only
available to citizens but also to non-citizens.

17. the Supreme Court of India had pronounced upon the need by
the government to setup a Criminal Injuries Compensation
Board for rape victims within 6 months. The Supreme Court had
suggested that this board should give compensation whether or
not a conviction takes place. The Supreme Court explained the
justification for this proposal as under-“It is necessary, having
regard to the Directive Principles contained under Article 38(I) of
the Constitution of India to setup Criminal Injuries Compensation
Board. Rape victims frequently incur substantial financial loss.
Some, for example are too traumatized to continue in
employment. Compensation for victims should be awarded by
the court on conviction of the offender and by the Criminal
Injuries Compensation Board whether or not a conviction takes
place. The board will take into account pain suffering and
shocks as well as loss of earnings due to pregnancy and the
expenses of the child but if it occurred as a result of rape...”

18. Supreme court fixed the liability of offender
and gave monetary relief to the victim as the
alleged act of Mr. Gill slapping Mrs. Bajaj on
her bosom amounted to “outraging of her
modesty” . it was further held that it was not
only an affront to the normal sense of
feminine decency but also an affront to the
dignity of the lady.