Ankush Shivaji Gaikwad vs. State of Maharashtra, Criminal Appeal No. __ of 2013 (Arising
out of S.L.P. (Crl.) No.6287 of 2011) (Decided on 03.05.2013)
The
Hon’ble Supreme Court held that:
“While the award or
refusal of compensation in a particular case may be within the Court's
discretion, there exists a mandatory duty on the Court to apply its mind to the
question in every criminal case. Application of mind to the question is best
disclosed by recording reasons for awarding/refusing compensation. It is
axiomatic that for any exercise involving application of mind, the Court ought
to have the necessary material, which it would evaluate to arrive at a fair and
reasonable conclusion. It is also beyond dispute that the occasion to consider
the question of award of compensation would logically arise only after the
court records a conviction of the accused. Capacity of the accused to pay which
constitutes an important aspect of any order under Section 357 CrPC would
involve a certain enquiry albeit summary unless of course the facts as emerging
in the course of the trial are so clear that the court considers it unnecessary
to do so. Such an enquiry can precede an order on sentence to enable the court
to take a view, both on the question of sentence and compensation that it may
in its wisdom decide to award to the victim or his/her family” [Para 62]
The
Court also observed:
“With modern concepts
creating a distinction between civil and criminal law in which civil law
provides for remedies to award compensation for private wrongs and the criminal
law takes care of punishing the wrong doer, the legal position that emerged
till recent times was that criminal law need not concern itself with
compensation to the victims since compensation was a civil remedy that fell
within the domain of the civil Courts. This conventional position has in recent
times undergone a notable sea change, as societies world over have increasingly
felt that victims of the crimes were being neglected by the legislatures and
the Courts alike. Legislations have, therefore, been introduced in many countries
including Canada, Australia, England, New Zealand, Northern Ireland and in
certain States in the USA providing for restitution/reparation by Courts
administering criminal justice.” [Para 30]
“The amendments to the
CrPC. brought about in 2008 focused heavily on the rights of victims in a
criminal trial, particularly in trials relating to sexual offences. Though the 2008
amendments left Section 357 unchanged, they introduced Section 357A under which
the Court is empowered to direct the State to pay compensation to the victim in
such cases where “the 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.” Under this provision, even if the accused
is not tried but the victim needs to be rehabilitated, the victim may request
the State or District Legal Services Authority to award him/her compensation.
This provision was introduced due to the recommendations made by the Law Commission
of India in its 152nd and 154th Reports in 1994 and 1996 respectively”
[Para 42]
The
Court also noted following case laws:
Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. (2007)
6 SCC 528
“.... The purpose of imposition of fine and/or grant of
compensation to a great extent must be considered having the relevant factors
therefore in mind. It may be compensating the person in one way or the other.
The amount of compensation sought to be imposed, thus, must be reasonable and
not arbitrary. Before issuing a direction to pay compensation, the capacity of
accused to pay the same must be judged. A fortiori, an enquiry in this behalf
even in a summary way may be necessary. Some reasons, which may not be very
elaborate, may also have to be assigned; the purpose being that whereas the
power to impose fine is limited and direction to pay compensation can be made
for one or the other factors enumerated out of the same; but sub- Section (3)
of Section 357 does not impose any such limitation and thus, power thereunder
should be exercised only in appropriate cases. Such a jurisdiction cannot be
exercised at the whims and caprice of a judge.”
Hari Singh v. Sukhbir Singh and Ors. (1988) 4 SCC 551,
The Court said:
“…. Sub-section (1) of Section 357 provides power to award
compensation to victims of the offence out of the sentence of fine imposed on
accused… It is an important provision but Courts have seldom invoked it.
Perhaps due to ignorance of the object of it. It empowers the Court to award
compensation to victims while passing judgment of conviction. In addition to
conviction, the Court may order the accused to pay some amount by way of
compensation to victim who has suffered by the action of accused. It may be noted
that this power of Courts to award compensation is not ancillary to other
sentences but it is in addition thereto. This power was intended to do
something to reassure the victim that he or she is not forgotten in the
criminal justice system. It is a measure of responding appropriately to crime
as well of reconciling the victim with the offender. It is, to some extent, a
constructive approach to crimes. It is indeed a step forward in our criminal
justice system. We, therefore, recommend to all Courts to exercise this power
liberally so as to meet the ends of justice in a better way.
Sarwan Singh and others v. State of Punjab (1978) 4 SCC 111,
Balraj v. State of U.P. (1994) 4 SCC 29,
Baldev Singh and Anr. v. State of Punjab (1995) 6 SCC 593,
Maru Ram & Ors. v. Union of India and Ors. (1981) 1 SCC
107
On
the facts of the case the court held:
“we regret to say that the
trial Court and the High Court appear to have remained oblivious to the
provisions of Section 357 CrPC. The judgments under appeal betray ignorance of
the Courts below about the statutory provisions and the duty cast upon the
Courts. Remand at this distant point of time does not appear to be a good
option either. This may not be a happy situation but having regard to the facts
and the circumstances of the case and the time lag since the offence was
committed, we conclude this chapter in the hope that the courts remain careful
in future.” [Para 63]
To see full text follow the link: