(8) of Section 33 of the POSCO Act which states as under:-
“33 (8) in appropriate cases, the Special Court, in
addition to punishment, direct payment of such
compensation to the child for any physical or
mental trauma caused to him or for immediate
rehabilitation for such child. ”
7. Sub-rule 1 to 6 of Rule 7 of the Rules of 2012 reads as
under:-
“7. Compensation.-(1) The Special Court may,
in appropriate cases, on its own or on an
application filed by or on behalf of the child, pass
an order for interim compensation to meet the
immediate needs of the child for relief or
rehabilitation at any stage after registration of the
First Information Report. Such interim
compensation paid to the child shall be adjusted
against the final compensation, if any.
(2) The Special Court may, on its own or on
an application filed by or on behalf of the
victim, recommend the award of compensation
where the accused is convicted, or where the case
ends in acquittal or discharge, or the accused
is not traced or identified, and in the opinion
of the Special Court the child has suffered loss or
injury as a result of that offence.
(3) Where the Special Court under sub-section
(8) of section 33 of the Act read with subsections
(2) and (3) of section 357A of the
Code of Criminal Procedure, makes a direction
for the award of compensation to the victim, it shall
take into account all relevant factors relating to the
loss or injury caused to the victim, including the
following:
(i) type of abuse, gravity of the offence
and the severity of the mental or physical
harm or injury suffered by the child;4
(ii) the expenditure incurred or likely to be
incurred on his medical treatment for
physical and/or mental health;
(iii) loss of educational opportunity as a
consequence of the offence, including
absence from school due to mental trauma,
bodily injury, medical treatment,
investigation and trial of the offence, or any
other reason;
(iv) loss of employment as a result of the
offence, including absence from place of
employment due to mental trauma, bodily
injury, medical treatment, investigation and
trial of the offence, or any other reason;
(v) the relationship of the child to the offender,
if any;
(vi) whether the abuse was a single isolated
incidence or whether the abuse took place over
a period of time;
(vii) whether the child became pregnant as a
result of the offence;
(viii) whether the child contracted a sexually
transmitted disease (STD) as a result of the
offence;
(ix) whether the child contracted human
immunodeficiency virus (HIV) as a result of the
offence;
(x) any disability suffered by the child as a
result of the offence;
(xi) financial condition of the child against
whom the offence has been committed so as to
determine his need for rehabilitation;
(xii) any other factor that the Special Court
may consider to be relevant.
(4) The compensation awarded by the Special
Court is to be paid by the State Government
from the Victims Compensation Fund or other
scheme or fund established by it for the
purposes of compensating and rehabilitating
victims under section 357A of the Code of Criminal
Procedure or any other laws for the time being in
force, or, where such fund or scheme does not
exist, by the State Government. 5
(5) The State Government shall pay the
compensation ordered by the Special Court within
30 days of receipt of such order.
(6) Nothing in these rules shall prevent a child or
his parent or guardian or any other person in whom
the child has trust and confidence from submitting
an application for seeking relief under any other
rules or scheme of the Central Government or State
Government.”
8. A conjoint reading of sub-section (8) of Section 33 of the
POSCO Act and Rule 7 of the Rules of 2012 would show that
the Special Judge (POSCO) is empowered to direct payment
of compensation to the victim/child for physical or mental
trauma which he or she has suffered for immediate
rehabilitation of such victim and that award of compensation
is in addition to the punishment that is ultimately imposed
upon the accused and the compensation awarded by the
Special Judge is to be paid by the State Government from the
Victims Compensation Fund or other scheme or fund
established under the provisions of Section 357-A of the
CrPC.
HIGH COURT OF CHHATTISGARH, BILASPUR
Cr.M.P.No.528 of 2017
State of Chhattisgarh, V Dilip Verma,
Hon’ble Shri Justice Sanjay K. Agrawal
Dated: 26/04/2017
1. In Special Case No.11/2014 the Additional Sessions Judge,
Khairagarh has convicted respondent No.1 for commission of
offence under Sections 363 and 376(1) of the IPC read with
Section 3 and 4 of the Protection of Children from Sexual
Offences Act, 2012 (hereinafter called as 'POSCO Act') and
sentenced to undergo R.I. for three years and fine of ₹ 1000/-
and R.I. for ten years and fine of ₹ 1000/-, in default of
payment of fine to further undergo R.I. for one month for
each default. Learned Additional Sessions Judge also
awarded compensation of ₹ 1,00,000/- to the rape victim
directing the State Government to pay the said amount.
Feeling aggrieved against the order granting compensation
to the tune of ₹ 1,00,000/- to rape victim, the State
Government has filed this petition under Section 482 of the
CrPC.
2. Mr.Gary Mukhopadhay, learned Deputy Government
Advocate appearing for the petitioner, would submit that the
Additional Sessions Judge has committed an illegality in
directing to pay such an amount to the victim. The trial Court
would have only made recommendation under Section
357-A(2) of the CrPC for payment of compensation and
thereafter upon acceptance of the said recommendation,
only in accordance with law, compensation was payable to
the victim and as such, the order of the trial Court is without
jurisdiction and without authority of law.
3. Mr.Ashish Surana, learned counsel appearing as Amicus
Curiae would bring to notice of this Court sub-section (8) of
Section 33 of the Act of 2012 which provides that in
appropriate cases, the Special Court (POSCO), in addition to
punishment, direct payment of such compensation to the
child for any physical or mental trauma caused to him or for
immediate rehabilitation for such child. He would also bring
to notice of this Court Rule 4 of the Protection of Children
from Sexual Offences Rules, 2012 (hereinafter called as
'Rules of 2012) which provides that the compensation
awarded by the Special Judge is to be paid by the State
Government from the Victims Compensation Fund or other
scheme or fund established by it for the purposes of
compensating and rehabilitating victims under Section 357-A
of the CrPC or any other laws for the time being in force, or,
where such fund or scheme does not exist, by the State
Government.
4. I have heard learned counsel appearing for the parties and
perused the judgment impugned.
5. It is not in dispute that respondent No.1 has been convicted
for offence under Section 376(1) of the IPC and he has also
been held guilty for violation of Section 3 of the POSCO Act3
i.e. penetrative sexual assault for which he is punishable
under Section 4 of the POSCO Act. Since he has been
sentenced under Section 376(1) of the IPC, therefore, no
separate sentence has been awarded to respondent/accused
for violation of Section 3 of the POSCO Act.
6. At this stage, it would be appropriate to notice sub-section
(8) of Section 33 of the POSCO Act which states as under:-
“33 (8) in appropriate cases, the Special Court, in
addition to punishment, direct payment of such
compensation to the child for any physical or
mental trauma caused to him or for immediate
rehabilitation for such child. ”
7. Sub-rule 1 to 6 of Rule 7 of the Rules of 2012 reads as
under:-
“7. Compensation.-(1) The Special Court may,
in appropriate cases, on its own or on an
application filed by or on behalf of the child, pass
an order for interim compensation to meet the
immediate needs of the child for relief or
rehabilitation at any stage after registration of the
First Information Report. Such interim
compensation paid to the child shall be adjusted
against the final compensation, if any.
(2) The Special Court may, on its own or on
an application filed by or on behalf of the
victim, recommend the award of compensation
where the accused is convicted, or where the case
ends in acquittal or discharge, or the accused
is not traced or identified, and in the opinion
of the Special Court the child has suffered loss or
injury as a result of that offence.
(3) Where the Special Court under sub-section
(8) of section 33 of the Act read with subsections
(2) and (3) of section 357A of the
Code of Criminal Procedure, makes a direction
for the award of compensation to the victim, it shall
take into account all relevant factors relating to the
loss or injury caused to the victim, including the
following:
(i) type of abuse, gravity of the offence
and the severity of the mental or physical
harm or injury suffered by the child;4
(ii) the expenditure incurred or likely to be
incurred on his medical treatment for
physical and/or mental health;
(iii) loss of educational opportunity as a
consequence of the offence, including
absence from school due to mental trauma,
bodily injury, medical treatment,
investigation and trial of the offence, or any
other reason;
(iv) loss of employment as a result of the
offence, including absence from place of
employment due to mental trauma, bodily
injury, medical treatment, investigation and
trial of the offence, or any other reason;
(v) the relationship of the child to the offender,
if any;
(vi) whether the abuse was a single isolated
incidence or whether the abuse took place over
a period of time;
(vii) whether the child became pregnant as a
result of the offence;
(viii) whether the child contracted a sexually
transmitted disease (STD) as a result of the
offence;
(ix) whether the child contracted human
immunodeficiency virus (HIV) as a result of the
offence;
(x) any disability suffered by the child as a
result of the offence;
(xi) financial condition of the child against
whom the offence has been committed so as to
determine his need for rehabilitation;
(xii) any other factor that the Special Court
may consider to be relevant.
(4) The compensation awarded by the Special
Court is to be paid by the State Government
from the Victims Compensation Fund or other
scheme or fund established by it for the
purposes of compensating and rehabilitating
victims under section 357A of the Code of Criminal
Procedure or any other laws for the time being in
force, or, where such fund or scheme does not
exist, by the State Government. 5
(5) The State Government shall pay the
compensation ordered by the Special Court within
30 days of receipt of such order.
(6) Nothing in these rules shall prevent a child or
his parent or guardian or any other person in whom
the child has trust and confidence from submitting
an application for seeking relief under any other
rules or scheme of the Central Government or State
Government.”
8. A conjoint reading of sub-section (8) of Section 33 of the
POSCO Act and Rule 7 of the Rules of 2012 would show that
the Special Judge (POSCO) is empowered to direct payment
of compensation to the victim/child for physical or mental
trauma which he or she has suffered for immediate
rehabilitation of such victim and that award of compensation
is in addition to the punishment that is ultimately imposed
upon the accused and the compensation awarded by the
Special Judge is to be paid by the State Government from the
Victims Compensation Fund or other scheme or fund
established under the provisions of Section 357-A of the
CrPC.
9. Thus, learned Additional Sessions Judge trying offences under
the provisions of the POSCO Act and the Rules 2012 was
fully empowered to award compensation to the victim and
such power is an additional jurisdiction conferred to the
Special Judge. The Special Judge (POSCO) has tried the
offence under the POSCO Act, therefore, submission of
learned Deputy Government Advocate that the Additional
Sessions Judge has no power and jurisdiction to award the
compensation and can only make recommendation for
payment of compensation is absolutely without merit and
deserves to be rejected.
10. Accordingly, the petition is dismissed in limine at
admission stage without notice to other side.
11. At this stage, it is brought to my notice that direction to
frame victim compensation scheme has been directed to be
paid by the Supreme Court, which has not been framed yet
by the State Government. The Supreme Court in the matter
of Tekan alias Tekram Vs. State of Madhya Pradesh
(Now Chhattisgarh)1
has directed as under:-
“13. On Perusal of the aforesaid victim
compensation schemes of different States and the
Union Territories, it is clear that no uniform practice
is being followed in providing compensation to the
rape victim for the offence and for her
rehabilitation. This practice of giving different
amount ranging from Rs.20,000/- to Rs.10,00,000/-
as compensation for the offence of rape under
section 357A needs to be introspected by all the
States and the Union Territories. They should
consider and formulate a uniform scheme specially
for the rape victims in the light of the scheme
framed in the State of Goa which has decided to
give compensation up to Rs.10,00,000/-.
14. While going through different schemes for relief
and rehabilitation of victims of rape, we have also
come across one Scheme made by the National
Commission of Women (NCW) on the direction of
this court in Delhi Domestic Working Women’s
Forum vs. Union of India and Ors. [Writ Petition
(Crl) No. 362/93], whereby this Court inter alia had
directed the National Commission for Women to
evolve a “scheme” so as to wipe out the tears of
unfortunate victims of rape. This scheme has been
revised by the NCW on 15th April 2010. The
application under this scheme will be in addition to
any application that may be made under Section
357, 357A of the Code of Criminal Procedure as
provided in paragraph 22 of the Scheme. Under
this scheme maximum of Rs.3,00,000/- (Three
lakhs) can be given to the victim of the rape for
relief and rehabilitation in special cases like the
present case where the offence is against an
handicapped woman who required specialized
treatment and care.
19.1 All the States and Union Territories shall make
all endeavour to formulate a uniform scheme for
providing victim compensation in respect of
rape/sexual exploitation with the physically
handicapped women as required under the law
taking into consideration the scheme framed by
1 (2016) 4 SCC 4617
the State of Goa for rape victim compensation.”
12. I hope and trust that the State Government would
frame the scheme as directed by the Supreme Court in the
above-stated judgment (supra) expeditiously. A copy of this
order be sent to the Principal Secretary (Home), State of
Chhattisgarh for compliance and needful action.
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