Forms of Punishment in the Criminal Justice System

The purpose of the criminal justice system is to control behavior by investigating, prosecuting and
punishing those people who violate criminal laws. Sentencing is the punishment phase of the process. A
judge sentences the person convicted of committing a criminal act by imposing a form of punishment
authorized by the law in that state.The options available to a judge increase in severity from fines and
probation to incarceration.

The purpose of the criminal justice system is to control behavior by investigating, prosecuting and
punishing those people who violate criminal laws. Sentencing is the punishment phase of the process. A
judge sentences the person convicted of committing a criminal act by imposing a form of punishment
authorized by the law in that state.The options available to a judge increase in severity from fines and
probation to incarceration.

Fines

Monetary fines are the most common form of punishment imposed by judges because most cases are
either traffic infractions or non-violent violations of criminal laws. Judges have the discretion to decide
how much the fine should be. If the law sets a minimum or a maximum fine for a particular offense, the
judge retains discretion to order payment of a fine within that range. A judge may direct a person to pay
a fine in addition to sentencing the person to incarceration, probation or community service.

Probation

Probation is an alternative to incarceration. Probation permits the sentencing judge to impose

conditions on the convicted person’s release. Ordering the convicted person to refrain from the use of
drugs and alcohol or to attend counseling are examples of conditions a judge can impose. The probation
officer assigned to the case supervises the convicted offender to make certain the conditions are being
met. Rehabilitation is the ultimate goal of probation supervision. The period of probation supervision a
judge may impose is established by the sentencing laws of each state. Generally, probation is three
years for a misdemeanor and five years for a felony. A person who is doing well on probation may be
recommended for early release from supervision by his probation officer

Incarceration

Incarceration is a form of punishment in which the offender is held in custody in either a jail or prison
for the length of time imposed by the judge. A sentence of one year or less is served in a local jail.
Sentences in excess of one year are served in a state prison

Community Alternatives

States are allowing judges to impose sentences that do not involve the usual forms of punishment.
Sentences can make use of community-based organizations. One form of community alternative
sentence is community service. Reserved primarily for non-violent, non-repeat offenders, community
service is an alternative to incarceration or probation. A person convicted of a crime is sentenced to
perform a specified number of hours of service to the community. The judge imposing the sentence
refers the person to the community organization administering the program. The person is assigned to
work in a facility in need of volunteer workers. Soup kitchens, public parks, community centers and
publicly operated hospitals are some of the facilities in which a person would work for the number of
hours set by the judge.

Kinds of Punishments
Various kinds of punishments are prescribed for various types of Crimes. Various Punishment theories
are proposed with the various intentions. The variation in the modality of punishment occur because of
the variation of societal reaction to law breaking.

General form of Punishments

The general forms of punishment are:

 Flogging
 Mutilation
 Branding
 Stoning
 Pillory
 Fine / Penalty
 Forfeiture of Property
 Security Bond
 Banishment
 Penal Servitude
 Simple Imprisonment
 Solitary confinement
 Imprisonment for Life
 Death or Capital Punishment

Punishments in Mohammedan Law

Before the Indian Penal Code came into existence, the Mohammedan Criminal Law was applied to both Hindus
and Muslims. The following are the various types of Punishments in Mohammedan Law.

1. Qisas - Victim or his relatives inflict similar pain / punishment to the offender
2. Diya - Offender can be exempted by paying money to the victim or heir of victim
3. Hadd - Fixed punishment to various crimes. Judge does not have a say.
4. Tazeer - Judge has the complete discretion to award punishment to the offender
5. Siyasat - King, in the interest of public could award punishment to the offender

Types of Punishments according to IPC

Section 53 of the Indian Penal Code, 1860 prescribes five kinds of punishments.

1. Death Penalty
2. Life imprisonment
3. Imprisonment
1. Rigorous
 2. Simple
4. Forfeiture of property
5. Fine
Theories of Punishments
Various theories are proposed for committing a Crime. These theories are called the Theories of
Punishments or the Five Theories of Punishments

There are Five theories of punishments. Deterrent Theory, Retributive Theory, Preventive Theory,
Reformative Theory, Expiatory Theory

Deterrent Theory
'Deter' means to abstain from doing at act. The main objective of this theory is to deter (prevent) crimes. It
serves a warning to the offender not to repeat the crime in the future and also to other evil-minded persons in
the society. This theory is a workable one even though it has a few defects.

Retributive Theory
Retribute means to give in return. The objective of the theory is to make the offender realise the suffering or the
pain. In the Mohammedan Criminal Law, this type of punishment is called 'QISAS' or 'KISA'. Majority or Jurists,
Criminologists, Penologists and Sociologists do not support this theory as they feel it is brutal and barbaric.

Preventive Theory
The idea behind this theory is to keep the offender away from the society. The offenders are punished with
death, imprisonment of life, transportation of life etc. Some Jurists criticize this theory as it may be done by
reforming the behavior of criminals.

Reformative Theory
The objective is to reform the behavior of the criminals. The idea behind this theory is that no one is born as a
Criminal. The criminal is a product of the social, economic and environmental conditions. It is believed that if
the criminals are educated and trained, they can be made competant to behave well in the society. The
Reformative theory is proved to be successful in cases of young offenders.

Expiatory Theory
Jurists who support this theory believes that if the offender expiates or repents, he must be forgiven.
The Indian Penal Code is a combination or compromise between the underlying principles of all these theories.

Criminal Conspiracy

A Conspiracy is an agreement between two or more person to do an illegal act or a legal act by illegal means.
It is immaterial that the illegal act is the ultimate object of such agreement.
The following constitute a Criminal Conspiracy.

1. There must be an agreement between two or more persons, who are alleged to conspire
2. The agreement should be
1. for doing an illegal act
2. for doing a legal act by illegal means
An Abetment is not a substantive offence, whereas a Criminal Conspiracy is.
Note
Under Common Law, husband and wife constitute one person and hence there cannot be any conspiracy to
commit an offence. However, under the Indian Law, husband and wife by themselves alone can be parties to a
criminal conspiracy.

Juvenile delinquency

Juvenile delinquency refers to antisocial or illegal behavior by children or adolescents.

 Belgian social statistician Adolphe Quetelet said that adolescents, particularly young men are prone
to crime, disorder and delinquency because of their childish impulsive or adolescent conflict. He said that
the propensity of crime will be at maximum at the age when strength and passion have reached their
heights.
 Justice V R Krishna said a child is born innocent, nourished with care but because of noxious
surroundings, neglect of basic need, bad company and abuses will make him delinquent.

Topics on Juvenile Justice

 Juvenile delinquency
 Causes for Juvenile delinquency
 Social Causes
 Psychological Causes
 Economic Causes
 Neglected Juvenile
 Juvenile Justice Board / Juvenile Court
 Observation Home
 Special Home
 Juvenile in conflict with Law
 Apprehension of Juvenile
 Control of Custodian over Juvenile
 Bail of Juvenile
 Punishments
 Child in need of care and protection
 Child Welfare Committee
 Powers of Committee
 Inquiry
 Children's Home
 Inspection
 Social Auditing
 Shelter Homes
 Transfer
 Restoration
 Rehabilitation and Social Reintegration
 Adoption
 Foster Care
 Sponsorship
 After-care Organization
 Linkages and co-ordination
 Borstal School - A corrective institution wherein adolescent offenders are given industrial training and other
instruction and are subjected to such disciplinary and more influences to their reformation and the
prevention of crime.
Four stages of committing a crime
There are Four stages in commission of a Crime.

1. Intention
2. Preparation
3. Implementation
4. Accompolishment

1. Intention to Commit a Crime

This is the first stage in commission of a crime. Intention to commit a crime is not punishable unless it is made
known to others either by words or conduct.
Eg: Waging a War against the Government is punishable. In this case, mere intention to commit is punishable.
Similarly, mere assembly of persons to commit a dacoity is punishable even though there is no preparation to
it.

2. Preparation
It is difficult for the prosecution to prove that necessary preparation has been made for the commission of the
offence. Eg: In case a person purchases a pistol and loads it with bullets, it is not possible to prove that the
person is carrying the pistol to kill some other person.
In the Indian Law, Mere Preparation to commit an offense is punishable in the following offenses.

1. Waging War
2. Preparation to commit a dacoity
3. Preparation for counterfeiting coins and Government stamps
4. Possessing counterfeit coins, false weight or measurement and forged documents.

3. Attempt
It is also known as the 'Preliminary Crime'.
Section XXIII of the IPC, 1860 deals with 'of Attempt to Commit Offences' and provides the punishment for
attempt.
Essentials of Attempt

1. Guilty intention to commit an offence

2. Some act done towards committing the offence
3. The act must fall short of the completed offence
Prescribed Punishments in the Indian Penal Code

1. Completed offences and attempts have been dealt in the same Section and same punishment is
prescribed. Eg: Waging War and Attempting to Wage War (Sec. 121)
2. In certain cases, punishments for attempt to offences and completed offences are dealt separately. Eg:
Punishment for murder is dealt in Section 302, while attempt to murder is dealt in Sec. 307.
3. In other cases, of attempt, are covered under Section 511 which prescribes the longest term of
imprisonment or with fine or both.

4. Accompolishment
This is the last stage in the commission of a crime. The accused is guilty of the offence only if he succeeds in
his act. Otherwise, he is guilty of attempt only.
Example Cases

1. R vs. Scofield (1784)

2. R vs. Linneker (1906)
3. Abhyanand Mishra vs. State of Bihar, AIR 1961 SC 1698

Law relating to Victim Compensation

Introduction

Every crime produces a victim(s). The victims are generally considered as mere informants or witnesses
in criminal trials, assisting the state in its endeavor to punish offenders, are now becoming the focal points
of our criminal justice system. The criminal justice system is basically meant to redress the victimization of
these victims and to address the issues surrounding him. However getting justice in Indian criminal justice
system was never a bed of roses for the victims of offence. The last few decades however witnessed
groundbreaking reforms in the approach of legal systems nationally as well as internationally with reforms
not only in statutory laws but also even in judicial approach towards the victims of crime.

Victim compensation is one of the major aspects in reparation of the harm or injury caused to the victim
due to the commission of the crime. Monetary assistance in one-way or the other always benefits the
victims in the mitigation of their sufferings. The renaissance of the prominence of victims in legal system
is however a recent phenomenon.

Compensation to the Victim: Criminal Justice System

Now accepting that there is no uniformity in the legal system in the country to address the issue of
compensation to the victims of crime, it is expedient to discuss the legal position in respect of
compensation to the victims of the offence. Post independence, the criminal trials were governed by
criminal Procedure Codes 1898 and then by 1973 Code (“Cr.PC”). Till the year 2008, there was a
provision more or less similar in both the codes for compensation to the victims of the offence that is
section 545 in the old Code and section 357 in the new Code.

(i) Ingredients
Section 357 Cr.PC: Order to pay compensation

(1) In case of Conviction and Fine is part of Sentence to Accused

When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine
forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to
be applied-

(a) Expenses in Prosecution: In covering the expenses properly incurred in the prosecution;

(b) Compensation to Victim: 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;

(c) Compensation in case of Death: 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, the fine imposed may
be used in paying compensation to the persons who are covered for relief 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;

(d) Compensation of Victim in other Offense: 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.

(2) Payment of Compensation subject to Appeal

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.

(3) Sentences without Fine

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.

(ii)The Court empowered to impose Compensation

The High Court or Court of Session or appellate court, when exercising its powers of revision may also make
an order under aforesaid section. 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.

C. Theory behind the Compensation of Victims

So this was the only provision in Criminal Procedure Code to compensate the victims of offence. The
compensation was to be payable by the accused and on his conviction. This provision therefore
prescribes the person as well as the circumstance (i.e. conviction of the accused) in which the
compensation can be paid to the victim. It is a fact that majority of people who are accused of and are
convicted of crimes are poor and therefore this provision of accused depended compensation was never
a satisfactory answer to the woes of victims of crime. The payment of compensation by the offender is not
possible where there is acquittal or where the offender is not apprehended. Further, the payment remains
suspended till the limitation period for the appeal expires or if an appeal is filed, till the appeal is disposed
off. The delay in the realization of the amount often adds to the woes of the victim. In that event is it not
the duty of the state to compensate the victims of crime. Jeremy Bentham an English jurist and
philosopher advocated compensation to victims, holding that, “satisfaction” should be drawn from the
offender’s property, but if the offender is without property…. It ought to be furnished out of the public
treasury, because it is an object of public good. Jeremy Bentham advocated the theory of strict liability,
which claims that compensation should be awarded because the social contract between the victim and
his government has been broken. That is, the victim has a legal claim against the state for its failure to
prevent the crime that produced the victimization. Since the government limits the ability of the individual
to protect him and instead gives that power to law enforcement personnel and taxes the individual to
support those personnel, then the victim can hold the government liable when its law enforcement
activities are unsuccessful. And, the case against the government is enhanced when one considers the
barriers it creates against the victims being restituted by the offender, including the aforementioned
doctrine of mutuality which limits the chances of civil recovery, and the states imprisonment of the
offender-which impedes his ability to reimburse the victim.
D. Recommendations, Judicial Activism and Amendment to include Victim Compensation in
Judicial System

The states duty to rehabilitate the victim of crime cannot be put any lower than its responsibility
of rehabilitating the criminal. In India, however the state remained itself away from this obligation
of compensating the victims till 2008, when the Criminal procedure Code was amended to impose
a liability on state for such compensations. The 14th Law Commission in its report recommended
state compensation, which is justified on the grounds that it is the political, economic and social
institutions of the state system that generates crime by poverty, discrimination, unemployment
and insecurity. The Malimath Committee3 was also of the view that the principle of compensating
victims of crime has for long been recognized by the law though it is recognized more as a token
relief rather than part of a punishment or substantial remedy. Victim compensation is a State
obligation in all-serious crimes, whether the offender is apprehended or not, convicted or
acquitted. This is to be organized in a separate legislation by Parliament.

Victim compensation is an important aspect of victim restitution in criminal justice system.

Supreme Court judgment recently in the case of Ankur Shivaji Gaikwad Vs. State of
Maharashtra[2], has observed that a long line of judicial pronouncements of Supreme Court of
India recognized a paradigm shift in the approach to victims of crime who are held entitled to
reparation, restitution or compensation for loss or injury suffered by them.

It is in consonance with this shift in the approach towards victims for compensating them that an
amendment was made in the Code of Criminal Procedure, 1973 whereby a new provision i.e.
Section 357 A has been added which provides for the Victim Compensation Scheme. Earlier a
provision for compensation to the victims of crime was section 357 Code of Criminal Procedure in
which the mandate was a direction to the convict to pay compensation to the victims of crime, if
the court on conviction of accused so directs. However in many cases as we see that the convicts
are from very poor back ground or are reluctant to pay compensation considering their prolonged
incarcerations, the victims seems to be remediless.

(i) New Provision for Victim Compensation

It appears that in order to overcome the situation, a new section 357 A Code of Criminal
Procedure was added in the Code of Criminal Procedure by an amendment in the year 2009. This
was the much-needed relief to the victims of offences and therefore one of the most progressive
legislation in recent times. It reads as-

Section 357A of CrPC- Victim compensation scheme

(1) Scheme for Compensation: 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.
The purpose of preparing the scheme by the state governments in consultation with the central
government was to have uniform schemes of victim compensation throughout India but this was
probably not done while preparing the schemes and the result is that there is great disparity in
compensations to victims in these schemes.

(2) Power to Decide Quantum of Compensation: Whenever a recommendation is made by the Court for
compensation, the District or the State Legal Service Authority, as the case may be, shall decide the
quantum of compensation to be awarded under the scheme aforesaid.

(3) Inadequate Compensation/Compensation in case of Acquittal or Discharge: 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) Compensation when Offender is Untraceable: 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 which shall
be decided after due enquiry award adequate compensation by completing the enquiry within two
months.

(5) Collateral Relief to Victim: The State or the District Legal Services Authority, as the case may be, to
lessen 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.

(ii) Position of States in Victim Compensation

In Goa there is a provision of compensation of Rs Ten Lacs to the rape victim whereas the scheme of
Delhi provides for Rs Three lacs as maximum compensation with states like UP having provisions of
further low compensations to such victims. However, in order to avoid these disparities the Supreme
Court has given a landmark judgment in Suresh vs. State of Haryana[3]observed that there is need to
consider upward revision in the scale for compensation in victim compensation schemes and pending
such consideration Authorities are directed 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. It will therefore mean
that if a victim compensation Scheme of a State prescribes lesser compensation for some offence, then
in that event, the victim compensation scheme of the State of Kerala has to be followed. This has an
effect of making compensations uniform throughout the country if followed in its right spirit. The
Government of Delhi in compliance of section 357A Code of Criminal Procedure has framed a Victim
Compensation Scheme for Delhi called as ‘’Delhi Victim Compensation Scheme, 2011’’. It has come
into force on 02.02.2012. The Nodal agency for deciding the quantum of compensation under the
Victim Compensation Scheme is the District or the State Legal Services Authority, as the case may be.
Clause 1 also speaks of creating a fund under the scheme.

E. Section 357 read with Section 357A of the CrPC.

Under this provision 357 A Code of Criminal Procedure, the State is also liable to pay compensation to
the victims of crime apart from the accused under section 357 Code of Criminal Procedure. There are
many situations after the commission of the offences in which the compensation can be awarded.

o At the conclusion of the trial.

o Inadequate compensation
o Accused not traceable or no trial commenced

Earlier under section 357, the compensation was awarded only in the eventuality of the conviction of
the accused but now not only on conviction but also on acquittal or discharge of the accused or in
case of untraced status of the accused, compensation can be granted. This is a positive development
that takes into account practical reality of an already crumbling criminal justice system, which is not in
a position to bring to book all offenders. It means that the new section 357 A Code of Criminal
Procedure has substantially widened the scope of compensating the victims of crimes.

F. Other Relevant Provisions for Victim Compensation

(i) Section 372 CrPC

Section 372 of the Cr.PC. has been amended, containing the following proviso: “Provided that the
victim shall have a right to prefer an appeal against any order passed by the Court acquitting the
accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal
shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”
(ii) Meaning of ‘Dependent’

The term ‘’Dependent’’ of victim has been defined in the Delhi Victim Compensation Scheme.
Dependent includes wife, husband, father, mother, unmarried daughter and minor children of the victim
as determined by the authority empowered to issue dependency certificate that is Collector, or any
other authority authorized by the Government.

(iii) Victim Compensation Disbursement

(1) Procedure for Disbursement of Compensation

For disbursement of compensation to the victim, there shall be a fund called ‘’The Victim
Compensation Fund’’ from which the amount of compensation, as decided by the DLSA has to be paid
to the victim or to her dependents. The procedure for granting compensation is provided in section 5 of
the aforesaid scheme. Whenever the court makes recommendation for compensation:

o The DLSA, examines the case, verify the contents of the claim with regard to the loss or injury or
rehabilitation as a result of crime and may also called for any other relevant information necessary
for consideration of the claim.
o The quantum of compensation has to be decided by DLSA on the basis of loss or injury or
requirement for rehabilitation, medical expenses to be incurred on treatment and such incidental
charges, such as funeral expenses etc.
o The compensation has to be deposited in a Nationalized Bank of the victim or her dependents.
o Out of the amount so deposited, 75 per cent of the same is put in a fixed deposit for a minimum
period of three years and the remaining 25 per cent shall be available for the utilization and initial
expenses by the victim as the case may be.
o In case of a minor, 80 per cent amount of the compensation is to be deposited which can be drawn
only on attainment of the age of majority, but not before three years of the deposition. However, in
exceptional cases, the aforesaid amount may be withdrawn for educational or medical needs of the
beneficiary at the discretion of DLSA.
o The interest on the same has to be credited directly by the bank in the saving account of the
victim/dependent on monthly basis.
o This scheme also provides for the provision of immediate first aid and medical benefit or any other
interim relief to the victim on a certificate of a police officer not below the rank of officer in-charge of
police station or a Magistrate of the area concerned.
o Legal Services Authorities also provides interim compensation in suitable cases where the victim
needs immediate medical treatment/rehabilitation. Such interim compensation can be payable on
recommendations of SHO concerned and Magistrate dealing with the case. This interim
compensation is provided under section 8 of the scheme.
o Legal Services Authority also has the power to institute legal proceedings before competent court
of law for recovery of compensation granted to the victim/his or her dependents from the persons
responsible for causing loss or injury as a result of crime. In this regard it also worthwhile to
mention that the courts may also grant interim compensation to the victims. The relevant judgments
are Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty[4] and Suresh vs State of Haryana[5]

(2) Limitation and Limit of Compensation

Victim Compensation Scheme also has a schedule providing for minimum and maximum amount of
compensation in different categories of offences. The quantum of compensation cannot be less than a
minimum amount and cannot be more than the maximum amount provided in the schedule attached to
the Victim Compensation Scheme. For example in cases of rape the minimum amount of compensation
that can be recommended is Rs. 2 lacs and maximum as Rs. 3 lacs. The limitation period for filing a
claim Under section 357(4) Code of Criminal Procedure is in cases when the offender cannot be traced
or identified is 3 years from the date of occurrence of crime.

(3) Precedents
The judicial response has always been positive in dealing with the benevolent provisions of
compensation. In Hari Krishna & State of Haryana v. Sukhbir Singh[6], Supreme Court judgment
mandated courts to exercise Section 357 liberally and award adequate compensation, particularly in
cases where the accused is released on admonition, probation or when the parties enter into a
compromise. At the same time, the court cautioned that the compensation must be reasonable, fair and
just; taking into account the facts and circumstances of each case, nature of the crime, veracity of the
claim and ability of the accused to pay. The court further observed that the payment by way of
compensation must, however, be reasonable. What is reasonable may depend upon the facts and
circumstances of each case. The quantum of compensation may be determined by taking into account
the nature of the crime and the ability of the accused to pay. If perhaps, there are more than one
accused they may be asked to pay in equal terms, unless their capacity to pay varies considerably. A
reasonable period for payment of compensation, if necessary by installment, may also be given. The
court may enforce the order by imposing sentence in default. Thus, the court must be satisfied that the
victim has suffered loss or injury due to the act, neglect or default of the accused to be entitled to
recover compensation. This loss or injury may be physical, mental or pecuniary.

Recently again the Supreme Court in Ankush Shivaji Gaikwads(supra) while considering the amended
provision of Code of Criminal Procedure reiterated its view and further impressed that now the courts
have to give reasons for not compensating the victim while deciding the case. The court observed that
the amendments to the Code of Criminal Procedure 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 54th Reports in 1994 and
1996 respectively. In India the principles of compensation to crime victims need to be reviewed and
expanded to cover all cases. The compensation should not be limited only to fines, penalties and
forfeitures realized. The State should accept the principle of providing assistance to victims out of its
own funds.

The court summed up its judgment as follows:

“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 Code of Criminal Procedure
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.”

The prominent feature of this judgment is that now the courts are obliged to give reasons for not
recommending compensation to the victims of the crime. Now concluding with the hope that the
judgment of Supreme Court in Ankush Shivaji Gaikwads (supra) case gets due attention from all those
who are concerned with the administration of criminal justice system and that in the changed legal
scenario in favour of the victims, this “neglected and forgotten lot” called victims may not again be lost
in oblivion groping in the dark for their precious rights of compensation for their injuries.

Conclusions

There are provisions for compensation to the victims of crime in Cr.PC.

o The compensation is to be provided by Legal Service Authorities on the recommendation of Courts.
o The compensation can be interim that is during investigation or trial or can be final at the
conclusion of the trial.
o The compensation is payable according to the ‘Victim Compensation Schemes’ of respective States.
o The courts have to give reasons in case it is not recommending compensation to the victims of
crime at the conclusion of the trial.