In a well-balanced, well-reasoned, well-analysed and well-articulated judgment titled XYZ v. State of Chhattisgarh and another in Writ Petition (Cr.) No. 284 of 2020, the Chhattisgarh High Court has just recently on August 18, 2020 held that the petitioner (rape victim) was entitled to compensation of Rs 7 lakhs along with interest under Section 357-A of the CrPC read with Section 33(8) of the POCSO Act. All the courts must always bear this in mind while ruling in such cases!

The Bench of Justice Sanjay K Agrawal of Chhattisgarh High Court was at pains to point out that, Despite clear mandate contained in Section 357-A of the Code and mandate of their Lordships of the Supreme Court in this regard in the judgments cited, the criminal courts are not even considering the question of compensation to the victims, particularly the rape victims which is not only disturbing but warranting remedial steps to be taken forthwith. Very rightly so! The proceedings of this matter have been taken up for final hearing through video conferencing as disclosed in para 1 of this judgment!

To start with, the ball is set rolling in para 2 of this latest, landmark and laudable judgment wherein it is observed that:
This writ petition projects the helplessness of the petitioner herein – rape victim (minor) at whose instance the accused (juvenile) has been found guilty and convicted for the criminal offences by the Juvenile Justice Board constituted under the Juvenile (Care and Protection of Children) Act, 2015 (for short 'the JJ Act of 2015'), but till date she has not been paid a single penny towards compensation, either interim or final, despite clear pronouncements of their Lordships of the Supreme Court in catena of judgments including that of Suresh and another v. State of Haryana (2015) 2 SCC 227 mandating the criminal courts to advert to Section 357A of the Code of Criminal Procedure, 1973 (for short, 'the Code') at the time of final hearing and to award appropriate compensation to the rape victim as a matter of rule to enable her and her family to rehabilitate compelling the rape victim/petitioner to file this writ petition asking for compensation from the State and its authorities.

While elaborating further, it is then enunciated in para 3 that:
The petitioner (rape victim) made a report against the accused (juvenile) for the offences punishable under Sections 363, 366 & 376 of the IPC and Sections 3 & 4 of the Protection of Children from Sexual Offences Act, 2012 (for short, the POCSO Act') and ultimately, he was charged for those offences and also charge-sheeted, but though he was also charge-sheeted for the offences punishable under Sections 3 and 4 of the POCSO Act, but since the accused was juvenile, therefore, as per the provision contained in Section 34(1) of the POCSO Act, he was tried by the Juvenile Justice Board constituted under the Act of 2015 and ultimately, by judgment dated 2-3-2020, he was found guilty and convicted by the Juvenile Justice Board for offences under Sections 363, 366 & 376 of the IPC and Sections 3 & 4 of the POCSO Act as per the provisions contained in the JJ Act of 2015 and also he was sentenced to fine of Rs. 1,000/- but no order was passed directing payment of compensation to the petitioner (victim) as provided under Section 357 of the Code. The learned Juvenile Justice Board also did not consider it appropriate to recommend to the District Legal Services Authority (DLSA) or the State Legal Services Authority (SLSA) in terms of Section 357A of the Code for grant of compensation to the petitioner which compelled the petitioner to file this writ petition seeking compensation for her rehabilitation.

To put things in perspective, it is then envisaged in para 9 that:
It appears from the record that at the instance of the petitioner, the accused (juvenile) was tried for the aforesaid offences under the provisions of the JJ Act of 2015, as per the provision contained in Section 34(1) of the POCSO Act and the accused has been convicted and sentenced under the aforesaid provisions of law. The JJ Act of 2015 provides for appeal, but no such appeal lies under Section 101 of the JJ Act of 2015 at the instance of victim against non-grant of compensation. Section 101(5) of the JJ Act of 2015 is not applicable to the instant case, therefore, appeal under the proviso to Section 372 of the Code is not available to the petitioner/victim. Even otherwise, proviso to Section 372 of the Code provides appeal against an order imposing inadequate compensation whereas, in the instant case, no compensation has been awarded to the victim, therefore, proviso to Section 372 of the Code is inapplicable to the petitioner (victim).

While calling the shots, it is then conceded by Justice Sanjay K Agrawal in para 10 that, True it is that the Juvenile Justice Board has not recommended for grant of compensation either under Section 357A (2) or (3) of the Code, but that non-recommendation under Section 357A (2) or (3) of the Code will not preclude this Court to consider and grant compensation to the victim if it is brought to the notice of this Court that the criminal court neither granted compensation under Section 357 of the Code nor made recommendation to the DLSA or the SLSA to grant compensation under Section 357A of the Code. Thus, it is a fit case where this Court should step-in and consider grant of compensation to the petitioner (rape victim) in its writ jurisdiction. As such, both the preliminary objections raised herein-above by the learned State counsel, are hereby overruled.

Briefly stated, the key point that is then revealed in para 24 that, It would be appropriate to mention here that the National Legal Services Authority (NALSA) set up a Committee and finalised the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes and submitted before the Supreme Court on 24-4-2018 and 21-5-2018, the said Scheme was accepted by the Supreme Court and called as:
the Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes.

In the said Scheme, minimum limit of compensation provided to rape victim is Rs 4 lakhs and upper limit of compensation is Rs 7 lakhs. The Explanation appended to the said Rules provides that Chapter will not apply to the minor victims under the POCSO Act, 2012 qua compensation, as compensation issues due to be dealt with by the Special Courts under Section 33(8) of the POCSO Act, 2012 and Rule 7 of the POCSO Rules, 2012. Thereafter, pursuant to the direction of the Supreme Court in Nipun Saxena (supra) by order dated 5-9-2018 that NALSA's Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes 2018 shall function as a guideline to the Special Court for the award of compensation to the victims of child sexual offence under Section 33(8) of the POCSO Act, 2012 and in exercise of the powers conferred by Section 357 of the Code, the State of Chhattisgarh has framed a scheme known as Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes, 2018 with effect from 2.10.2018. Explanation appended to the Scheme provides that in case of Minor Victims under POCSO, it would be applicable.

Most significantly, it is then very rightly held in para 27 that:
Reverting to the facts of the case in the light of the above-stated statutory provisions and in the light of the aforesaid principles of law laid down by their Lordships of the Supreme Court in the aforesaid judgments, it is quite vivid that since the victim was minor and the accused (juvenile) has been convicted for offences under Sections 363, 366 & 376 of the IPC and Sections 3 & 4 of the POCSO Act, the petitioner (rape victim) and her family members were required to be rehabilitated to protect them. Consequently, recommendation ought to have been made by the Juvenile Justice Board to the DLSA or the SLSA under Section 357A(2) of the Code read with Section 33(8) of the POCSO Act and Rule 7 of the POCSO Rules, 2012, but that has not been done despite the clear cut mandate in that regard.

Taking into consideration that the petitioner is rape victim, that too minor and she has been sexually assaulted when the offence took place and she has suffered not only physically but mentally also, and considering the gravity of offence and that she is required to be rehabilitated and further taking into consideration the provisions contained in the NALSA's Compensation Scheme of 2018 and also keeping in mind the provision enumerated in Section 33(8) of the POCSO Act read with Rule 7 of the POCSO Rules, 2012/Rule 9 of the POCSO Rules, 2020 (w.e.f. 9-3-2020) and she has been traumatized heavily, the petitioner herein is entitled for total compensation of Rs 7 lakhs under Scheme 2018 and not under Scheme of 2011.

Apart from this, since she has not been paid any compensation at all, even interim or otherwise, and she is required to come to this Court to ventilate her grievances seeking the remedy of writ jurisdiction of this Court, she would also be entitled for interest from the date of judgment by the Juvenile Justice Board i.e. 2-3-2020 till the actual payment is made.

As a corollary, para 28 then states that:
Accordingly, it is held that the petitioner will be entitled for compensation of Rs 7 lakhs jointly from respondents No. 1 & 2 along with interest. Respondents No. 1 & 2 shall deposit the above-stated amount before the Special Judge (POCSO), Raipur within 30 days from today. The Special Judge (POCSO) shall disburse the said amount to the victim in accordance with the directions given by the Supreme Court in the matter of General Manager, Kerala State Road Transport Corporation, Trivandrum v. Mrs. Susamma Thomas and others AIR 1994 SC 1631 (paragraph 17) read with paragraph 12 in Nipun Saxena (supra) [(2019) 13 SCC 715].

Finally, the key point that is made in last para 30 is that:
Before leaving the record, a note of caution is absolutely necessary to the criminal courts as well as for the State Government and its authorities. Despite clear mandate contained in Section 357A of the Code and mandate of their Lordships of the Supreme Court in this regard in the judgments cited (supra), the criminal courts are not even considering the question of compensation to the victims, particularly the rape victims which is not only disturbing, but warranting remedial steps to be taken forthwith.

No doubt, this commendable judgment must be implemented in letter and spirit. It must be ensured always that the rape victim gets the compensation money that is ordered by the court for her. In this case, the Chhattisgarh High Court has ordered Rs 7 lakh compensation for her which she must get forthwith! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh