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Duty to consider compensation for rape cases: XYZ v. State of Chhattisgarh & Anr. (2020)
Date of judgement: 18/08/2020
Court: High Court of Chhattisgarh
Factual Background:
The petitioner was a minor girl who was raped by a juvenile. Being a minor himself, the accused was tried by the Juvenile Justice Board (for short, Board) under the Juvenile Justice (Care and Protection of Children) Act, 2015. On 02/03/2020, The Board found the accused to be guilty of the offences under Sections 363, 366 & 376 of the Indian Penal Code. He was also found to be guilty of the offence of penetrative sexual assault under Sections 3 & 4 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) and was hence convicted.
However, the Board did not order any compensation and neither did it refer the matter to the District Legal Service Authority (DLSA) or a State Legal Services Authority. Through this petition, a compensatory amount was sought from the respondent State Government, in light of the various provisions and judicial pronouncements supporting the same.
Relevant provisions of law:
- The Code of Criminal Procedure, 1973
Section 357 of the Code states that a criminal court is entitled to order an award of compensation when the Court has imposed a fine or a sentence. Section 357A provides for a Victim Compensation Scheme set up by the State Government to rehabilitate victims of crimes. If a court refers a matter of compensation to the DLSA, it shall decide the quantum of compensation to be provided.
Section 372 of the Code states that there will be no appeal unless it has been provided under the Code or by any other law.
- The Protection of Children from Sexual Offences Act, 2012
The Act was brought about to protect children from all forms of sexual offences while also enabling the setting up of Special Courts. Section 33(8) states that a special Court may direct compensation to rehabilitate a child who has been subject to a sexual offence.
Rule 7 of the POCSO Rules, 2012 entails that a Special Court may pass an order for interim compensation and subsequently a final compensation upon the outcome of the proceedings. Rule 7(3) lists out the various factors to be considered while awarding compensation under Section 357 of the Code such as the gravity of the offence, costs for treatment, disability caused, pregnancy, financial conditions of the child etc.
The Rules of 2012 were substituted with the Protection of Children from Sexual Offences Rules, 2020 on 09/03/2020. Nonetheless, the scope of Rule 7 remains unscathed as Rule 9 of the 2020 Rules is in para materia to it.
Contentions:
The learned counsel on behalf of the petitioner raised the precedent set by the Hon’ble Supreme Court in Suresh & Anr. v. State of Haryana, (2015) 2 SCC 227. The said judgement mandated criminal courts to consider the aspect of compensation for victims of rape under Section 357 of the Code of Criminal Procedure, 1973 (for short, Code or CrPC). It was contended that a joint reading of Section 33(8) of the POCSO Act along with Rule 7 of the POCSO Rules, 2012 clearly stated that a Special Court may direct compensation in addition to punishment for special cases.
These would subsequently be compensated under the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes, 2018.It was also submitted that the dealing of the matter under the POCSO Act and the JJ Act would not remove the scope for compensation provided under 357A of the Code and 33(8) of POCSO as substantive law would prevail over procedural law.
The State Government advocated that the Board had made no order for compensation and in such an instance, an appeal was to be filed under Section 372 of the Code. The learned counsel for the petitioner held that the provision for appeal under 372 of the Code would not apply as the matter has been decided under the power of the JJ Act and not the Code. Thus, they challenged the maintainability of the suit before the High Court.
The respondents further added that the case of the petitioner would not fall within the purview of the 2018 Scheme as claimed, but rather the Chhattisgarh Victim Compensation Scheme, 2011 for which she could be awarded a maximum of Rs. 50,000.
Judgement:
- Relevant provisions and precedents supporting compensation
Being a case falling under Section 376 (punishment for rape) of the IPC, the petitioner was addressed by the pseudonym of XYZ according to the mandate laid down by Section 228A of the IPC. The learned Judge primarily addressed the contentions raised by the respondents who disputed the maintainability of the suit.
The accused had been tried by the JJ Board in consonance to the provisions of the POCSO Act and thus, an appeal would lie under Section 101 of the JJ Act. However, Section 101 could not be exercised for the issue of non-awarding of compensation. It was also held that an appeal under Section 372 of the Code could only apply for an instance where the compensation awarded was unsatisfactory, whereas the Board had made no order as to compensation. Thus, the petitioner had no other avenue to raise an appeal. However, the power of a High Court to award compensation remained undisputed and couldn’t be stripped away.
Emphasis was placed on the Supreme Court decision in Hari Krishna & State of Haryana v. Sukhbir Singh, (1988) 4 SCC 551, which recommended courts to use the power under Section 357 liberally. The decision was based on the grounds that criminal courts were being reluctant to award a sum of compensation whereas it was necessary to award to meet the ends of justice. Nonetheless, a state of apathy continued with courts refraining from exercising Section 357, and thus in Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770, the duty to consider the issue of compensation was made mandatory. The judgement held that though awarding of compensation is a discretionary power, courts mandatorily have to consider the question of compensation.
Another significant development in this realm was brought about by the 154th Law Commission Report that suggested the induction of Section 357A as a Victim Compensation scheme. The said provision came into effect on 31/12/2009. The learned judge in this matter upheld that the purpose of such a section was to constitute a scheme that would enable a Court to direct the State to pay compensation if compensation under Section 357 was inadequate.
Reliance was placed on the Calcutta High Court decision in Bijoy @ Guddu Das v. State of West Bengal, 2017 Cri. L.J. 3893, which listed the procedure to be followed with regard to compensation in POCSO cases. The said judgement called for a system of interim compensation during proceedings and a final award based on the outcome of proceedings. Compensation would be ascertained in light of Rule 7(3) of POCSO Rules, 2012 and if a court declined or refused to provide compensation, it would have to record the reasons. The judgement in Guddu Das was upheld by the Supreme Court in Nipun Saxena & Anr. v. Union of India & Ors., (2019) 2 SCC 703.
- Compensation payable from Victim Compensation Scheme:
The learned Judge then considered the relevant provisions of the POCSO Act. Section 33(8) provided for payment of compensation by Special Courts. Rule 7 of the Rules of 2012 empowered judges of Special Courts to award compensation after taking into account the various factors enlisted under sub-clause (3). Additionally, such compensation would be paid out of the Victim Compensation Scheme established by a State Government and the State would have to make such payment within 30 days of the order.
Thus, reference was made to the Chhattisgarh Victim Compensation Scheme, 2011 that came into being on 03/08/2011. However, the scheme’s ceiling for compensation was capped at Rs. 50,000 for a victim of rape. This was remedied by referring to the decision in Nipun Saxena as the schemes existing before the decision did not include a provision for POCSO cases. The said judgement called for the application of the NALSA Compensation Scheme as a guideline to Special Courts for compensation.
Pursuant to the 05/09/2018 order in Nipun Saxena and by virtue of Section 357A of the Code, the State of Chhattisgarh brought about the Compensation Scheme for Women Victims/ Survivors of Sexual Assault/other Crimes, 2018. The Scheme that came into force on 02/10/2018 applied to POCSO cases as well while setting a compensation limit from Rs. 4,00,000- Rs. 7,00,000 for victims of rape.
The question before the Court was whether the petitioner would be entitled to compensation under the 2018 scheme or the 2011 scheme. The Board had not referred to any of the provisions entailing compensation and neither did it state why the compensation was not being provided. The Judge felt it was apposite to order compensation to the petitioner in light of the offences committed against her and to rehabilitate her and her family.
The Court factored into account that the petitioner was a minor and had been physically and emotionally traumatized. It also considered the Scheme of 2018, Section 33(8) of the POCSO Act read with Rule 7 of the Rules, 2012 and awarded a sum of Rs. 7 lakhs as compensation under the new scheme. The fact that the petitioner had not been paid an interim compensation and that she had to address them by means of writ jurisdiction additionally entitled her to interest from the date of the Board’s order. The State was thus directed to deposit the sum before the Special Judge of Raipur within 30 days.
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