Achiya Bibi @ Achhiya Sardar vs State Of West Bengal & Ors

Debangsu Basak, J

Petitioner has challenged the decision dated April 10, 2017 rendered by the District Legal Services Authority and a decision dated April 29, 2018

passed by the State Legal Services Authority exercising powers under the provisions of the West Bengal Victim Compensation Scheme, 2017.

Learned Advocate appearing for the petitioner has submitted that, the petitioner was trafficked in 2009. The mother of the petitioner lodged a First

Information Report with Jibantala Police Station on May 30, 2011. A charge sheet dated August 8, 2012 was submitted in the criminal case. The case

was committed to the learned Sessions Judge at Alipore, 24 Parganas on September 21, 2013. The case was subsequently transferred to the learned

16th Additional Sessions Judge at Alipore for trial on November 12, 2013. The warrant of arrest issued against the accused is yet to be executed.

There is an Order dated June 13, 2016 for further investigation. The trial is yet to commence. In such circumstances, an application dated January 4,

2017 was made for compensation under the West Bengal Victim Compensation Scheme, 2017 to the District State Legal Services Authority. Such

application was rejected by an Order dated April 10, 2017. The petitioner filed an appeal therefrom. Such appeal was rejected on July 10, 2017.

Learned Advocate appearing for the petitioner has referred to Section 357 and 357A of the Code of Criminal Procedure, 1973. He has also referred

to the provisions of Section 2 (wa) and the proviso to Section 372 of the Code of Criminal Procedure, 1973. He has submitted that, such provisions

were introduced by the same piece of legislation as that of Section 357A of the Criminal Procedure Code, 1973. According to him, criminal justice is

now veering towards victim rehabilitation and compensation apart from punishment.

Significantly, Section 357 was not amended when, Section 357A was introduced to the statute. Therefore, the legislative intent was that, a victim

should receive compensation notwithstanding the result of the trial. In support of such contentions he has relied upon 2013 Volume 3 All India Criminal

Law Reports page 794 (Ankush Shivaji Gaikwad v. State of Maharashtra.) On the question of definition of Court, he has relied upon All India Report

1956 Supreme Court 66 (Brajnandan Sinha v. Jyoti Narain).

Referring to the impugned Orders, learned Advocate appearing for the petitioner has submitted that, the impugned Order has proceeded on an

erroneous reading of the Scheme of 2017. The rejection by the Appellate Authority as well as by the State Legal Services Authority on the ground

that, an application for compensation can be entertained only on fulfilment of statutory conditions stipulated in Section 357A(4) of the Code of Criminal

Procedure is bad. He has referred to the judgment and order dated June 25, 2018 passed in W.P. No. 4517 (W) of 2018 (Serina Mondal alias Piyada

v. State of West Bengal & Ors.) and the judgment and order dated July 7, 2017 passed in W.P. No. 26174 (W) of 2014 (Piyali Dutta v. State of West

Bengal & Ors.) in support of his contentions.

Learned Advocate General appearing for the State has submitted that, Section 357 and Section 357A appear under Chapter XXVII of the Code of

Criminal Procedure, 1973 which deals with judgments. He has submitted that, on the conclusion of the trial, at the time of passing the judgment, the

Court in seisin of the criminal proceeding is empowered under Section 357 of the Criminal Procedure Code, 1973 to impose fine or penalty against the

accused so as to compensate the victim of the crime. He has referred to Section 357A and submitted that, such provisions consider various

eventualities. Section 357A(4) provides for an event not covered by the situations dealt with under Section 357A(2) and (3). Where, a criminal case is

pending, such as in the present case then, Section 357A(4) should not come into operation. He has submitted that, the power of the constitutional

Court to grant compensation on the ground of violation of Article 21 of the Constitution of India cannot be questioned. According to him, such power

exists notwithstanding the provisions of Section 357 or 357A of the Code of Criminal Procedure, 1973. However, once, a proceeding is pending before

a Criminal Court then, a victim has to await the decision of the Criminal Court to receive the compensation. The Scheme of 2017 cannot be invoked.

He has referred to the Scheme of 2017 and submitted that, the Scheme does not identify a victim. There are lacunae in the Scheme of 2017 which

requires a revisit. The question as to whether the person applying under the Scheme of 357 is a victim or not does not fall for consideration while an

application made under the Scheme of 2017 is decided. The same may lead to unmeritorious claims being allowed at the expense of the State

exchequer. There may be instances where, an applicant may receive compensation under the Scheme of 2017, when, such an applicant is not the

victim.

Referring to the facts of the present case, he has submitted that, the petitioner was rescued from Pune on October 21, 2010 with a First Information

Report being lodged with regard thereto. A criminal case is pending before the relevant Court at Pune. It was subsequent to the rescue that, a missing

diary was lodged on December 1, 2010 and a First Information Report lodged on May 30, 2011 in West Bengal. According to him, the trial at the Pune

Court started in 2010. He is, however, not aware of the outcome of the trial.

Learned Advocate General has referred to 2015 Volume 2 Supreme Court Cases page 227 (Suresh & Anr. v. State of Haryana). He has submitted

that, there is a distinction between exercise of powers under Article 21 of the Constitution of India and Section 357A of the Code of Criminal

Procedure, 1973. The writ petitioner is not before the Constitutional Court asking the Constitutional Court to exercise powers and grant compensation

in view of Article 21 of the Constitution of India. He has submitted that, the Scheme of 2017 prescribe certain conditions which must be fulfilled for

receiving the compensation. Referring to Section 357 of the Code of Criminal Procedure, 1973 he has submitted that, it is for the Court in seisin of the

trial to award requisite compensation. The Scheme of 2017 is there in order to get over a situation where, the Court in seisin of the proceeding is

unable to award the compensation. Such is not the case so far as the petitioner is concerned.

Referring to Sections 177, 178 and 179 of the Code of Criminal Procedure, 1973, learned Advocate General has submitted that, such sections lay

down which Court can have jurisdiction in respect of inquiries and trials. He has submitted that, reading Sections 177, 178 and 179 along with Section

357 and Section 357A of the Code of Criminal Procedure, 1973 the irresistible conclusion is that, a victim must await the decision of the Court in seisin

of the proceedings for the victim to receive any compensation. Therefore, according to him, Sub-Section 4 of Section 357A of the Code of Criminal

Procedure, 1973 has to be construed and applied in such context. Looking at the subject matter of the present proceedings, he has submitted that,

neither D.L.S.A. nor S.L.S.A. have erred in rejecting the application for compensation made by the petitioner as, the trial of the criminal proceeding is

yet to conclude.

The petitioner has claimed herself to be a victim of human trafficking, commercial sexual exploitation and abuse amongst others. The petitioner has

claimed that, she was trafficked on October 13, 2009 and that she was rescued on October 21, 2010 from Pune. A First Information Report bearing

Number 171/2010 was registered at Farazkhana Police Station, Pune under Section 344/34 of the Indian Penal Code, 1960 and under Sections 3, 4, 5,

6 and 7 of the Immoral Traffic (Prevention) Act, 1956. On her rescue at Pune, the petitioner was initially kept at a shelter home and was ultimately

released from Pune to be kept at a shelter home at Kolkata. Subsequently the petitioner was reunited with the family and returned to her native place.

The mother of the petitioner had lodged missing diary at Jibantala Police Station in West Bengal on December 1, 2010. The petitioner had narrated her

ordeal to her mother whereupon, her mother lodged a written complaint dated May 30, 2011 with the Jibantala Police Station against the accused. The

complaint of the mother of the petitioner was registered as a First Information Report being F.I.R. No. 173/2011 dated May 30, 2011 under Sections

363/372 of the Indian Penal Code, 1860 against the accused. Such First Information Report culminated into a charge sheet being no. 395/12 dated

August 8, 2012 under Sections 363/372 of the Indian Penal Code, 1860. The Court took cognizance of the commission of offences under Sections

363/372 of the Indian Penal Code, 1860 and committed the case to the learned Sessions Judge at Alipore for trial. The proceeding was transferred to

the learned 16th Additional Sessions Judge at Alipore on November 12, 2013. The charges against the accused have not been framed by the Court as,

the accused was absent. The Court in seisin of the proceeding issued a warrant of arrest against the accused on July 31, 2014. The warrant of arrest

remains unexecuted till date. The mother of the petitioner being dissatisfied with the investigation applied before the Court in seisin of the proceeding

for further investigation. Such prayer was allowed on June 13, 2016. The Police are yet to submit a report with regard to further investigation before

the Court in seisin of the proceedings.

On January 4, 2017, the petitioner applied for compensation under the West Bengal Victim Compensation Scheme, 2012. During the pendency of such

application, the Scheme of 2017 came into being on February 15, 2017. The application of the petitioner dated January 4, 2017 was registered by the

respondent no. 3 as Victim Compensation Case No. 1 of 2017. Such application was rejected on April 10, 2017. The petitioner preferred an appeal

therefrom being Victim Compensation Appeal (Traffic) No. 2 of 2017 to the respondent no. 2. The appeal was dismissed by the respondent no. 2 by

its Order dated September 24, 2018.

By the impugned Order, the respondent no. 2 affirmed the order of the respondent no. 3. Both the respondent no. 2 and respondent no. 3 have

proceeded on the basis of interpretation of Section 357A of the Code of Criminal Procedure, 1973. According to them, when, a criminal proceeding is

pending, before a Court, then, both the respondent no. 2 and 3 should await the decision of such trial, for the purpose of computing the compensation

receivable by the victim.

Criminal jurisprudence is founded upon the need of righting a criminal wrong caused to an individual. Initially, it was recognised that, a person who is

the victim of a criminal activity possesses a right of redressal by way of substitution with regard thereto. Initially, retribution was considered to be a

valid right which, the offended person of a criminal activity was entitled to as a redressal of the wrong. Questions about the quantum, method, quality,

and timing of the retribution led the society to bring about regulations governing the same. Criminal jurisprudence found it appropriate that, a criminal

activity did not only offend the individual who was at the receiving end of such criminal activity but the society at large and therefore, not only, the

person who was affected by the criminal activity should be redressed, the society at large should be redressed. In such context the society took upon

itself the duty of punishing the offender. It evolved procedures of trial of the offender, predetermined the quantum of punishments for the specified

offences. It was thought that, a pre-disclosed quantum of punishment for a specified offence would act as a deterrence against the commission of a

crime.

Over the years however, a further development took place in criminal jurisprudence. It was considered appropriate that, the offended person should be

compensated and rehabilitated for the offence perpetrated upon him. It was seen that, the offence was an act of failure of the State to protect the

offended from the criminal offence. Therefore, not only, the offender is to compensate the victim but also, the State owed a duty to the offended to

compensate and rehabilitate the offended. It is in this context, that Section 357 and 357A are to be read and understood. Section 357 of the Code of

Criminal Procedure, 1973 comes within Chapter XXVII which deals with judgment. Section 357 of the Code of 1973 requires a Court imposing a

sentence in a criminal proceeding to provide for deferring of the expenses properly incurred in the prosecution, payment of compensation to a person

for loss or injury caused by the offence and payment of compensation to the persons entitled to receive such compensation, in case of death and,

compensation to the victim of an offence including theft, criminal misappropriation, criminal breach of trust, cheating and like offences.

Suresh & Anr. (supra) has considered Section 357 and 357A of the Code of 1973 in the context of the Court in seisin of the criminal proceeding

passing a sentence without imposing any sentence of fine and providing for compensation to the victim. It is in such a context that, Suresh & Anr.

(supra) has held that, it is the duty of the Courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show

commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. Suresh & Anr. (supra)

cannot be read and understood to mean that, it has held that, a victim needs to await a final decision in the criminal proceeding to receive

compensation or money for rehabilitation. Quite to the contrary, it has lamented the failure of the Courts in not applying Section 357 while delivering a

judgment in a criminal trial. It has reminded the Courts in seisin of a criminal trial its duties under Section 357 of the Code of 1973.

Section 357A of the Code of 1973 has been enacted to provide for a solution where, the offender is not traced or identified, where no trial takes place

or where, the compensation awarded under Section 357 of the Code of 1973 is not adequate for the rehabilitation or where, the cases end in acquittal

or discharge.

Section 357A was inserted into the statute book by Act 5 of 2009 with effect from December 31, 2009. Sub-Section (1) of Section 357A requires

every State Government in co-ordination with the Central Government to prepare a scheme for providing funds for the purpose of compensation to a

victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. State of West Bengal formulated the

West Bengal Victim Compensation Scheme, 2012 subsequently replaced by the West Bengal Victim Compensation Scheme, 2017.

Section 357A has three entry points through which, a victim of a crime can be granted compensation. Two of the three entry points are through orders

of Courts in seisin of the criminal trial. One is through the application of the victim or his dependents. One entry point through Court is Section

357A(2) of the Code of 1973. Section 357A(2) of the Code of 1973 allows a Court in seisin of a criminal trial to recommend grant of compensation.

On receipt of such recommendation from the Court, the DLSA or SLSA, as the case may be, shall decide the quantum of compensation to be

awarded under the Scheme formulated under Section 357A(1) of the Code of 1973. Section 357A(3) is the other entry point through orders of Court.

It allows a trial Court, at the conclusion of trial, if satisfied that compensation awarded under Section 357 of the Code of Criminal Procedure, 1973 is

not adequate for rehabilitation of the victim, or the case ended in acquittal or discharge and the victim has to be rehabilitated then, the Court can make

a recommendation for compensation to DLSA or SLSA as the case may be. In such a case, DLSA or SLSA as the case may be, to whom, such

recommendation has been made, will be obliged to decide the quantum of compensation and pay the same. The other point of entry under Section

357A is by way of an application by the victim or his dependents to DLSA or SLSA. Such an entry point is provided under Section 357A(4) of the

Code of 1973. At such entry point, all that is required is an application by the victim of a crime or his dependents to SLSA or DLSA for compensation.

On receipt of such an application, SLSA or DLSA is required to make due enquiry and award adequate compensation. In a given case, where there is

a crime, the offender may not be traced or identified. In such a case, the victim of such crime does not lose the right to receive compensation. Victim

of a crime, where the offender has not been traced or identified and where the trial did not commence needs compensation and rehabilitation also. The

same is statutorily recognised under Section 357A(4) of the Code of 1973. Sub-Section 5 of Section 357A of the Code of 1973 requires SLSA or

DLSA to award adequate compensation after making due enquiry. The enquiry contemplated under Sub-Section 5 of Section 357A has to be

understood in the context of the object of Section 357A. Sub-Section (6) of Section 357A of the Code of 1973 allows SLSA and DLSA as the case

may be to make an interim award of compensation to ameliorate the suffering of the victim and make available immediate first aid facility or medical

benefits to the victim free of cost or direct any other interim relief as it deems fit. Again, the emphasis is on rehabilitation of the victim and

compensation to the victim for the crime suffered.

Section 357A has come into statute book in order to compensate and rehabilitate the victim. It is recognition of right of a victim to receive

compensation and rehabilitation notwithstanding the result of a criminal proceeding. Right to receive rehabilitation and compensation is not dependent

upon or must await a recommendation made by a Court under Section 357A(2) or an order on conclusion of trial under Section 357A(3).

Rehabilitation and compensation cannot be denied to a victim on the ground that, the criminal proceeding is yet to attain finality or that the Court in

seisin of the proceeding is yet to make a recommendation.

West Bengal Victim Compensation Scheme, 2017 has come into effect on February 17, 2017. It has been promulgated by the State Government in

coordination with the Central Government, in exercise of powers conferred by Section 357A of the Code of 1973. Victim is defined in Clause 2(i) of

the Scheme of 2017 as a person who has suffered loss or injury as a result of crime and requires rehabilitation. Clause 4 of the Scheme of 2017 has

prescribed the eligibility of compensation. It contemplates grant of compensation to a victim, where the offender is not traced or identified but the

victim is identified and where no trial takes place. A person falling within the definition of the Victim under the Scheme of 2017 and being eligible for

compensation in terms of Clause 4 of the Scheme of 2017 cannot be denied the compensation. Clause 4 of the Scheme of 2017 is essentially a

scenario under Section 357A (4) of the Code of Criminal Procedure, 1973. Clause 4 of the Scheme of 2017 cannot be construed to mean that, the

authority considering an application for grant of compensation under the Scheme of 2017, must await a decision of the Court in seisin of the criminal

proceedings. It can however take into consideration the quantum of compensation the victim received pursuant to order of the Court in seisin of the

criminal proceedings in awarding the compensation under the Scheme of 2017. It cannot deny consideration of an application for compensation simply

on the ground that, the Court in seisin of the criminal proceeding is yet to decide whether, the applicant is entitled to compensation or not or that such

Court did not pass an order directing compensation to be given. Operation, invocation and implementation of the Scheme of 2017 are not dependent

upon any order of Court. The Scheme of 2017 is such that it operates notwithstanding the absence of any order of Court. The benefits of the Scheme

of 2017 can neither be withheld nor its applicability or operation be suspended, pending a decision of a Court or a direction of a Court. The Scheme of

2017 is for the benefit of a victim and it must be implemented with the requisite urgency.

Brajnandan Sinha (supra) has considered “what constitutes a Court†within the meaning of Contempt of Courts Act, 1952. It has held that a

commissioner appointed under The Public Servants (Inquiries) Act, 1850 is not a Court within the meaning of the Act of 1952. Ankush Shivaji

Gaikwad (supra) has considered Section 357 of the Code of 1973. It has held that, award or refusal of compensation in a particular case may be

within the discretion of the Court. However there exists a mandatory duty on the Court to apply its mind to the question of award of compensation in

every criminal case. Court has to take into account the capacity of the accused to pay. It has observed that, power to award compensation was

intended to reassure the victim that the victim is not forgotten in the criminal justice system.

Piyali Dutta (supra) has considered the West Bengal Victim Compensation Scheme, 2017 in the context of whether, the scheme was retrospective in

nature or not. It has held that, incidence of crime happening prior to the schemes coming into effect, cannot be denied compensation if such victim is

otherwise entitled to compensation.

Piyali Dutta (supra) was considered in Serina Mondal alias Piyada (supra). Serina Mondal alias Piyada (supra) has considered a similar decision of the

DLSA as impugned herein by which, DLSA rejected the claim of the victim. The Court is informed that, the writ petitioner herein is similarly situated

and circumstanced as that of the writ petitioner in Serina Mondal alias Piyada (supra). It has held as follows:-

“The object and purpose of the Scheme of 2017 which itself replaced an earlier scheme of the year 2012 is inter alia that a victim of a serious

crime specially a woman needs urgent and immediate attention and both physical and mental rehabilitation. Such rehabilitation from the nature of the

scheme and Section 357A is not dependent on the pace on which either the investigation is conducted or the trial is carried on. If this be the object and

purpose of the Scheme and Section 357A read as a whole, I cannot countenance the findings of the State Legal Services Authority in the impugned

order that both the requirements i. e. accused not being traced or identified as well as the factum of trial not having commenced, need be satisfied.

Compensation is awarded under the scheme as formulated pursuant to Section 357A (supra) as the fundamental rights of the victim under Article 21

have been in fact violated. Denial of compensation to such victim would continue such violation and perpetrate gross inhumanity on the victim in

question. This cannot be the object of Section 357A and the 2017 Scheme referred to hereinabove. I therefore hold that both the requirements the

accused not being identified or traced as also that the trial should not have commenced, need not be satisfied for entitlement of compensation under

the 2017 scheme.

There is yet another way to address the issue. If the accused have not been identified a trial cannot commence anyway. The Legislature could not

have imposed an occurrence leading to the same result twice over, as a condition precedent. Any multiple preconditions must be independent

occurrences. Two similar events cannot form two different conditions.â€​

In the facts of the present case therefore, the impugned decision of SLSA and DLSA cannot be sustained. SLSA is directed to disburse compensation

to the petitioner under the Scheme of 2017 forthwith.

In course of hearing of the writ petition, learned Advocate General has submitted that, the Scheme of 2017 requires a revisit to fill up certain lacuna.

As the Scheme stands today, relief cannot be denied to the petitioner. It is for the State to take appropriate measures with regard to the Scheme of

2017 if it thinks so appropriate.

W.P. No. 26168 (W) of 2018 is disposed of. No order as to costs.

Urgent certified website copies of this judgment and order, if applied for, be made available to the parties upon compliance of the requisite formalities.