ABSTRACT

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. It is flaw of our criminal law jurisprudence that
victims of crime and the distress of their dependents of the victim do not attract the attention of
law. In fact, the victim compensation is still the vanishing point of our criminal law. The remedies
currently available under the law are limited, fragmented, uncoordinated and reactive. This is the
lacunae in the system, which must be remedied by the legislature.

The present paper attempts to examine and evaluate the law governing victim compensation in
India and the criminal justice system. The paper also accentuates the need for inclusive law to
provide assistance to crime victims.
 C0MPENSATORY RELIEF TO VICTIM IN BNSS

Introduction

The Victim Compensation Scheme is a crucial aspect of the legal system, ensuring that individuals
harmed by crimes receive adequate financial support and that wrongful judicial actions do not go
unaddressed. The scheme functions within the broader framework of the Bharatiya Nyaya Sanhita
Samhita (BNSS), emphasizing the judiciary’s responsibility to prevent and rectify harm caused by
judicial errors.

Judicial errors, particularly wrongful convictions and detentions, have significant repercussions.
Provisions like Section 399 acknowledge this issue by ensuring that affected individuals have legal
recourse for compensation. This commitment aligns with India’s constitutional principles, as seen
in Rudal Shah v. State of Bihar (1983)1, where the Supreme Court emphasized that compensation
for wrongful detention is a fundamental right under Article 21.

Additionally, Section 398 of BNSS, which establishes the Witness Protection Scheme,
complements the Victim Compensation Scheme by safeguarding key individuals in criminal
proceedings. Protecting witnesses ensures the integrity of judicial processes and indirectly
strengthens the rights of victims.

Victim Rights under the Indian Constitution:

Apart from the safeguards provided under criminal laws, the Indian constitution also provides
rights to victim, such as right to fair investigation and trial. In NIRMAL SINGH KAHLON v.
STATE OF PUNJAB1, the Hon'ble Apex Court was pleased to observe that the right to fair
investigation and trial is applicable to the accused as well as the victim and such a right to a victim
is provided under Article 21 of the Constitution of India. The Hon'ble Apex Court held "An accused
is entitled to a fair investigation. Fair investigation and fair trial are concomitant to preservation of
fundamental right of an accused under Article 21 of the Constitution of India. But the State has a
larger obligation i.e. to maintain law and order, public order and preservation of peace and harmony

1 1983 4 SCC 141

2 (2009) 1 SCC 441
in the society. A victim of a crime, thus, is equally entitled to a fair investigation. When serious
allegations were made against a former Minister of the State, save and except the cases of political
revenge amounting to malice, it is for the State to entrust one or the other agency for the purpose
of investigating into the matter. The State for achieving the said object at any point of time may
consider handing over of investigation to any other agency including a Central agency which has
acquired specialization in such cases."

Victim Rights Under Bharatiya Nagarik Sursksha Sanhitha, 2023:

• A victim is permitted under section 18(8) of BNSS (section 24(8) of Cr.P.C) to

engage an advocate of his/her choice to assist the prosecution. However, the Advocate’s
power is limited, and he may only present written arguments after the evidence has been
recorded unless the court grants permission.

• A Victim at the stage of filing the First Information Report as under section 173 of
BNSS ( section 154 of Cr.P.C) is entitled to get the copy of the information as recorded to
be given forthwith, free of cost.

• In cases of offences under section 64 to 71 and 74 to 79 and 124 of Bharatiya Nyaya

Sanhitha, 2023 the victim’s statement has to be recorded by a woman police officer.

• In case the victim is mentally or physically disabled temporarily or permanently,

such information has to recorded at the residence of victim or at a convenient place of
victim’s choice and in the presence of a interpreter or special educator.

• As under section 173 of BNSS, the victim can also give the information by
electronic communication and it shall be taken on record by the officer in charge of a police
station on being signed by the informant within three days of giving it.

• If the officer in charge refuses to record such information given by the victim, the
same can be sent to the Superintendant of police concerned and in case if the information
is still not recorded, the victim can make an application to the Magistrate.
 • In case the officer in charge of a police station chooses to file a final report closing
a case, a notice has to be issued to the victim/informant informing about the closure.

• As under section 339 of BNSS (section 302 of Cr.P.C) the court can permit an
advocate on behalf of the victim to conduct the prosecution.

In Shiv Kumar v. Hukam Chand3 , the question that was posed before three-Judge Bench of the
Hon’ble Supreme Court of India was whether an aggrieved has a right to engage his/her own
counsel to conduct the prosecution despite the presence of the Public Prosecutor. The Hon’ble
Supreme Court noted that “the role of the Public Prosecutor was upholding the law and putting
together a sound prosecution; and that the presence of a private lawyer would inexorably
undermine the fairness and impartiality which must be the hallmark, attribute and distinction of
every proper prosecution. In that case the advocate appointed by the aggrieved party ventured to
conduct the cross-examination of the witness which was allowed by the trial court but was reversed
in revision by the High Court, and the High Court permitted only the submission of written
argument after the closure of evidence.” Upholding the view of the High Court, the Hon’ble
Supreme Court went on to observe that before the Magistrate any person (except a police officer
below the rank of Inspector) could conduct the prosecution, but that this laxity is impermissible in
the Sessions by virtue of Section 225 CrPC, which pointedly states that the prosecution shall be
conducted by a Public Prosecutor.”

The Hon'ble Supreme Court held in ZAHIRA HABIBULLA H. SHEIKH v. STATE OF

GUJARAT4. “It is also to be noted more often than not a Public Prosecutor may not be aware of
the facts which the victim is in possession of. Further a Public Prosecutor is instructed by police
and not by the victim. It could also to be seen that in a changing society the nature of offences also
get changed according to the situation. That is a reason why number of special enactments have
been made such as Dowry Prohibition Act, Negotiable Instruments Act, and Domestic Violence
Act which can be said as apart from offence against the society are also personnel in nature in
asmuch as it is the victim who can bring-forth the alleged offence in a better way.” As observed
by the Hon'ble Apex Court in the judgment referred above, justice should need not be done but

3. 2018 SC 866
4. 2004 4 SCC 158
appears to be done. Further inasmuch as the victim seeks to assist prosecution there cannot be any
prejudice since what is sought to be made is only to assist the prosecution and not to replace the
prosecution. Moreover in view of the huge inflow and pendency of cases, at times it may be
possible for a Public Prosecutor to concentrate fully on a single case.

• The Victim has the right to prefer an appeal against the order passed by the court
acquitting the accused or convicting for a lesser offence or imposing inadequate
compensation under section 413 of BNNS, (Section 372 of Cr.P.C)

• The Court at the time of imposing a sentence, of which fine does not form a part,
the court may when passing judgment, order the accused to pay , by way of compensation,
such amount as may be specified in the order to the victim (person who has suffered any
loss or injury by reason of the act for which the accused is sentenced) as under section 395
of BNSS (section 357 of Cr.P.C). At the time of awarding the compensation in any other
subsequent suit relating to the same matter, the court shall take into account any sum paid
or recovered as compensation under section 395 of BNSS.

• The Court can also order payment of reasonable expenses of the complainant/victim
attending for the purposes of any inquiry or trial or other proceedings before the court under
section 350 of BNSS (section 312 of Cr.P.C)

• In camera proceedings are allowed under BNSS for the purpose of safeguarding the
Victim and her identity in specific offences. The trial of offences under section 64 to 68
and section 70 and 71 of BNS, 2023, and section 4,6,8 or section 10 of the Protection of
Children from Sexual Offences Act, 2012, shall be conducted in camera by a women judge
or magistrate under section 366 of BNSS (section 327 of Cr.P.C)

The Hon’ble Supreme Court of India in Sakshi Vs. Union of India5, held “the mere sight of the
accused may induce an element of extreme fear in the mind of the victim or the witnesses or can
put them in a state of shock. In such a situation he or she may not be able to give full details of the
incident which may result in miscarriage of justice. Therefore, a screen or some such arrangement

5.. WP 33 OF 1997
can be made where the victim or witnesses do not have to undergo the trauma of seeing the body
or the face of the accused.” And the Hon’ble Supreme Court gave following directions:

(1) The provisions of sub-section (2) of section 327 Cr.P.C. shall in addition to the offences
mentioned in the sub-section would also apply in inquiry or trial offences under sections 354
and 377 IPC.

(2) In holding trial of child sex abuse or rape :

(a) a screen or some such arrangements may be made where the victim or witnesses (who may
be equally vulnerable like the victim) do not see the body or face of the accused;

(b) the questions put in cross-examination on behalf of the accused, in so far as they relate
directly to the incident, should be given in writing to the President Officer of the Court who may
put them to the victim or witnesses in a language which is clear and is not embarrassing;

(c) the victim of child abuse or rape, while giving testimony in court, should be allowed
sufficient breaks as and when required.

The Hon’ble Supreme Court has also laid down certain precautions to be taken in case the victim
is a child as follows:

(i) Permitting use of a videotaped interview of the child's statement by the judge (in the
presence of a child support person).

(ii) Allowing a child to testify via closed circuit television or from behind a screen to obtain a
full and candid account of the acts complained of.

(iii) The cross examination of a minor should only be carried out by the judge based on written
questions submitted by the defense upon perusal of the testimony of the minor.

(iv) Whenever a child is required to give testimony, sufficient breaks should be given as and
when required by the child.
The Hon’ble Supreme Court held that the above directions are in addition to those given in State
of Punjab v. Gurmit Singh6. Wherein the Hon’ble Supreme Court held that:

i) When trials are held in camera, it would not be lawful for any person to print or publish
any matter in relation to the proceedings in the case, except with the previous permission of the
Court as envisaged by Section 327 (3) Cr. P.C. This would save any further embarrassment being
caused to the victim of sex crime.

ii) Wherever possible it may also be worth considering whether it would not be more desirable
that the cases of sexual assaults on the females are tried by lady Judges, wherever available, so
that the prosecutrix can make her statement with greater ease and assist the Courts to properly
discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities
while appreciating evidence in such cases.

iii) The Courts should, as far as possible, avoid disclosing the name of the prosecutrix in their
orders to save further embarrassment to the victim of sex crime. The anonymity of the victim of
the crime must be maintained as far as possible throughout.

Section 398: Witness Protection Scheme

Ensuring Witness Security

Witnesses play a pivotal role in upholding justice. However, threats, intimidation, and harassment
often prevent them from testifying freely. Section 398 introduces the Witness Protection Scheme,
ensuring that individuals who come forward to testify receive necessary security measures.

The Supreme Court, in Mahender Chawla v. Union of India (2018)7, recognized the importance of
witness protection, leading to the formulation of the Witness Protection Scheme, 2018. The ruling
mandated the establishment of a robust system to protect witnesses, reinforcing the necessity of
legal safeguards like those outlined in Section 398.

Protection Benefits

6. 1996 AIR 1393, 1996 SCC 2 384

Although Section 398 does not provide financial compensation, it enhances the judicial system’s
integrity by preventing witness tampering. This indirectly benefits victims, as strong witness
testimonies contribute to successful prosecutions. In Zahira Habibulla Sheikh v. State of Gujarat
(2004), the Supreme Court stressed that fair trials depend on witness security, emphasizing that
failure to protect witnesses could lead to miscarriages of justice.

Steps for Applying Under the Victim Compensation Scheme

Step 1: Determine Eligibility and Compile Supporting Documents

Eligibility Check

To qualify for compensation under the BNSS framework, a victim must demonstrate direct harm
due to a crime. Dependents of a primary victim may also be eligible in specific circumstances,
such as loss of a breadwinner.

In Delhi Domestic Working Women’s Forum v. Union of India (1995)8, the Supreme Court
acknowledged the need for a structured compensation mechanism for rape survivors, leading to
the eventual development of victim compensation schemes across states.

Documentation Requirements

Supporting documents are critical in substantiating claims. Key documents include:

 Medical records
 Financial statements
 Police reports
 Victim impact statements
 Proof of income or dependency (e.g., affidavits from employers or community leaders).

8. 1995 SCC 1 14
Where traditional income records are unavailable, courts have accepted alternative proof, as seen
in Bodhisattwa Gautam v. Subhra Chakraborty (1996)9, where the Supreme Court stressed that
compensation must not be denied due to lack of formal evidence.

Step 2: Submit the Application to the Appropriate Authority

The application must be submitted to either the District Legal Services Authority (DLSA) or State
Legal Services Authority (SLSA):

 Filing the Application

 Ensure all forms are accurately completed.
 Provide a clear account of the crime and the harm suffered.
 Attach supporting documents for validation.
 Request for Interim Relief

Section 396 allows victims to seek interim relief, ensuring immediate financial or medical
assistance before the completion of a full inquiry. Courts have upheld the importance of timely
relief, as seen in Nilabati Behera v. State of Orissa (1993), where the Supreme Court awarded
interim compensation to a custodial violence victim.

Step 3: Verification and Inquiry by DLSA/SLSA

Upon submission, the DLSA or SLSA will conduct an inquiry to verify the claim:

 Additional Statements: Authorities may request further documents or witness statements.

 Expedited Processing: Interim relief applications should highlight urgent aspects to
prioritize the case.

The case of S. Nambi Narayanan v. Siby Mathews (2018) 10 illustrates the importance of thorough
verification in wrongful prosecution cases. The Supreme Court awarded compensation to a falsely
accused scientist, emphasizing the judiciary’s role in ensuring justice.
9. 1996 AIR 922
10. 2018 10 SCC 804
Step 4: Approval, Rejection, or Appeal

After verification, the claim may be approved, rejected, or subject to appeal:

 Approval: If granted, compensation is transferred directly to the victim’s bank account.

 Rejection: If denied, applicants can appeal with additional evidence.

The case of Khatri v. State of Bihar (1981)11 highlighted the state’s obligation to compensate
victims of custodial torture, reinforcing the need for a fair review process in rejected claims.

Practical Implications of the Victim Compensation Scheme

The BNSS framework ensures:

1. Immediate Relief for Victims – Section 396 enables interim relief, reducing victims’ financial
and medical burdens.

2. Accountability for Judicial Errors – Section 399 allows individuals to claim compensation for
wrongful detention or prosecution. The Babloo Chauhan v. NCT of Delhi (2017) case
demonstrated how judicial compensation principles apply to wrongful arrests.

3. Emphasis on Documentation – Detailed evidence is critical for claim approval. Courts have
recognized the necessity of thorough documentation in multiple rulings.

Conclusion

The Victim Compensation Scheme represents a significant step toward justice for crime victims in
India. Understanding its procedural framework, eligibility criteria, and complementary provisions
like witness protection enhances advocacy efforts. By strategically navigating each stage of the
application process, legal professionals can maximize the success rate of claims and secure
essential relief for victims.

11. 1981 SCC 1 OF 627