VICTIM COMPENSATION

VICTIM COMPENSATION UNDER THE POCSO ACT

By Sri G.Uday Kumar, Senior Civil Judge, Secretary, DLSA Rangareddy District. –

TABLE OF CONTENTS:

  1. Introduction
  2. Who will decide the amount to be awarded – Special Court of DLSA?
  3. The Pocso Act & Rules
  4. Schedules
  5. Why the Special Court has to award and why not the DLSA under the Scheme?
  6. Kinds of compensation available under the Pocso Act
  7. Mulitple applications for Interim Compensation
  8. Special Relief
  9. Final compensation
  10. Quantifying compensation amount
  11. Compensation to male child victims
  12. Table for comparison
  13. Disbursement of compensation
  14. Awareness on Victim Compensation
  15. Conclusion

Introduction:

Until 2009, there was no comprehensive legislation or a well-designed statutory scheme in India that allowed a victim to seek compensation from either the perpetrator or the State. The amendment to the CrPC notified in 2009, addressed the victim’s right to compensation. In the year 2009, section 357A was introduced in the Cr.P.C. Now there is a statutory duty upon the State, under Section 357A of CrPC, to award compensation to victims of crime. A new Section 357A was introduced to the Criminal Procedure Code in order to cast a responsibility on the State Governments to formulate Schemes for compensation to the victims of crime in coordination with the Central Government.Compensation to be provided under Section 357A of Cr.P.C. is in addition to the compensation under Section 357 Cr.P.C.

S. 357A (1) of Cr.P.C. makes it mandatory for State Government to frame a Scheme in coordination with Central Government for providing funds for compensation to victims or his/her dependants. Whereas, S.357(2) of Cr.P.C casts a duty on District Legal Service Authority or the State Legal Service Authority, as the case may be, to decide the quantum of compensation to be awarded to the victim under the Scheme referred to sub-section (1). Accordingly, at present in India, the States/UTs have enacted Victim Compensation Scheme, following the insertion of Section 357A to CrPC by way of an amendment in the year 2008.The VCS of States/ UTs have laid down their own eligibility criteria for grant of compensation, procedure for grant of compensation, limitation period for filing claims for grant of compensation etc. The Central Government through the Central Victim Compensation Fund Guidelines, 2016, has asked the States/UTs to provide compensation as laid by the guidelines in its Annexure.

Accordingly both the States enacted Victim Compenation Schemes in the year 2015. Those are The Andhra Pradesh Victim Compensation Scheme 2015 and The Telangana Victim Compensation Scheme 2015. The first one came into force through GO.Ms.No.43 Home (Courts-B)Dept, dt.15-04-2015. The second one came into force through GO.MS.No.9 Law(la,LA&J-Home-Courts.B)Dept, dt.07-03-2015. Under these Schemes Victim Compensation Fund was created and guidelines are provided regarding claims of compensations by victims.

The Telangana Victim Compensation Scheme 2015 was amended vide GO.Ms.No.9 dt.28-2-2019 of LAW (LA, LA & J-HOME-COURTS-B) DEPARTMENT of TS through which two amendments were brought into. One is Para 7(8) in the Schedule, at serial No.6, in columns 2 and 5 are substituted with. The second one is an Additional chapter called as Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimesis added after Para 13 of Telangana State Victim Compensation Scheme 2015. Similarly, two amendments were made to The Andhra Pradesh State Victim Compensation Scheme 2015. An amendment was made to the said scheme, wherein the amounts of compensation specified by Government of India in the Revised Central Victim Compensation Scheme has been adopted in the State Scheme by substituting the existing Schedule appended to the Scheme with new Schedule vide GOMs.No.132, Home (Courts-B) Department, dated 06-12-2016. Further the AP Government notified the “NALSA’s Compensation Scheme for Women Victims/Survivors of Sexual Assault/ Other Crimes, 2018″ to the “AP Victim Compensation Scheme, 2015” and the NALSA’s Scheme and guidelines shall become operational w.e.f. 02-10-2018.

Compensation under section 357Aof Cr.P.C. is to be paid in two ways : one is on the “recommendation” of a court under section 357A(2) or section 357A(3) of the Cr.P.C; and two is “on an application” made by a victim under section 357A(4) Cr.P.C. to the State or District Legal Services Authority for award of compensation.

Under Sec.357A of Cr.P.C, unlike Section 357, the onus was not simply on the offender to pay the compensation, but had been put on the District Legal Service Authority or State Legal Services Authority to determine the quantum of compensation in each case. Under the State compensation Scheme 2015 of both the States,District Legal Service Authority is authorised to determine the quantum of compensation in each case that is “recommended” by the court.

Who will decide the amount to be awarded–Special Court or DLSA?:

Now the question is whether the DLSA under State VCSchemes is competent to determine and award compensation to the child victims in POCSO cases also? Let us refer to the Provisions and Rules pertaining to victim compensation under the POCSO Act and POSCSO Rules 2020.

Sec.33(8) of the POCSO Act:

Section 33(8) of The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), empowers the Special Courts to direct payment of such compensation as may be prescribed to the child, for physical or mental trauma caused or for immediate rehabilitation, in addition to punishment.

From a reading of the above provision it can be observed that while the trial court is expected to make “recommendations” under Section 357A of Cr.P.C, the Special Court can “direct payment” of compensation under Section 33(8) of the POCSO Act.

Rule 9(1) of the 2020 POCSO Rules empowers a court to award interim compensation in appropriate cases, on its own or on an application filed by a victim, to meet the immediate needs or for relief or rehabilitation, at any stage after registration of the FIR; which interim compensation is to be adjusted against the final compensation awarded;

Further more, under Rule 9(2), the court, on its own or on an application filed by the victim, is also empowered to recommend the award of compensation, whether the accused is convicted or even acquitted or discharged or remains untraced or unidentified, if in the opinion of the court, the victim has suffered loss or injury as a result of the offence;

Rule 9(3) of the 2020 Rules authorises the Special court to make a direction for the award of compensation to the victims.

It is relevant here to refer to the interpretation of the above Rules and Provison by the Hon’ble Delhi High court in MST. X (THROUGH MOTHER AND NATURAL GUARDIAN) Vs STATE & ORS.in W.P.(CRL) 1419/2020(Date of decision

13th May, 2021)case which reads thus:

“(k) There appears to be some dissonance and confusion insofar as the use of the words ‘recommendation’, ‘order’ and ‘direction’ is concerned, in that sections 357A(2) and (3) Cr.P.C., Clause 9(1)(Part-II) of the Delhi Victim Compensation Scheme 2018 and Rule 9(2) of the 2020 Rules speak of the court making ‘recommendation’ for award of compensation to the concerned legal service authority; but Rule 9(1) and (3) of the 2020 Rules say that the court may make an ‘order’ and ‘direction’ for award of interim compensation and compensation respectively. In relation to payment of interim compensation, under Rule 9(1) the court is empowered to make “an order for interim compensation”. To meaningfully construe these words, in the opinion of this court, a court seized of a plea for compensation under the POCSO Act, may in its discretion, do one of three things: (i) if the application is for interim compensation,the court may order payment of interim compensation to a victim; (ii) if the application is for compensation, the court may either recommend the award of compensation without specifying the quantum of compensation to be paid, leaving it to the concerned legal service authority to quantify it in accordance with the applicable schedule of the DVC Scheme 2018; or (iii) if the application is for compensation, the court may direct the concerned legal service authority to pay the compensation as quantified by it. Even a recommendation made by a court would be binding on the legal service authority and compensation would decidedly be payable,except the quantum payable would be left to computed by the authority. A direction to pay a quantified amount as compensation, would obviously be binding with no discretion left with the legal service authority.

(l)If a victim applies for compensation directly to the legal service authority and not to the court, the authority would decide whether compensation is payable, and if so in what amount, subject to the other stipulations contained in the DVC Scheme 2018.

(m) There should be no confusion that a decision made by the court, whether as a ‘recommendation’, ‘order’ or ‘direction’, would be binding on the legal service authority, subject only to the court leaving the discretion to quantify the compensation payable to the authority or otherwise, depending upon what is said in the decision.”

But contrary to the above, in another case in Writ Petition (Crl.) 3244/2019, dated 15 th June 2020 [MOTHER MINOR VICTIM No. 1 & 2 vs STATE AND OTHERS.] the Hon’ble Delhi High Court held that “It is well settled that every statutory power is also coupled with the duty to exercise it. In view of the express provisions of Section 33(8) of the POCSO Act and Rule 7 of the said Rules (Rule 9 of the Protection of Children from Sexual Offences Rules, 2020 as is currently in force), the duty to award compensation in appropriate cases has been conferred on the Special Court and therefore, it is incumbent on the Special Court to pass necessary orders for compensation/interim compensation in appropriate cases. It is not open for the Special Court to delegate the said power and direct the concerned Legal Services Authority to examine any claim for compensation payable to a minor victim of an offence punishable under the POCSO Act.”

It is also relevant to refer to the observation of the Hon’ble Supreme court at this juncture. Having observed the discrepancies in the victim compensation schemes of different states and UTs, the Hon’ble Supreme Court in its Order dated 12 October 2017 in NIPun SAXENA v. UNION of INDIA (Writ Petition (Civil) No. 565/2012)(2019) 13 SCC 715) directed NALSA to prepare Model Rules for  Victim Compensation for sexual offences and acid attacks. As a result, an Additional Chaptrer is inserted under title “Compensation Scheme for Women Victims/ Survivors of Sexual Assault/Other Crimes”. This chapter excludes victim compensation under the POCSO Act since the POCSO Act lays down its own procedure and process for compensating minor victims of sexual abuse.

The Explanation given in Para No.18 of NALSA Scheme clarifies that this Scheme(additional Chapter of VCS) does not apply to minor victims under the POCSO Act,2012. It further makes it clear that the compensation issues are to be dealt with only by the learned Special Courts under sec.33(8) of POCSO Act and Rules 7 of the POCSO Rules( now Rule 9 as per amended rules 2020). If the child becomes victim of other than sexual offences covered by the POCSO Act, compensation can be granted under the State Victim Compensation Scheme ie., Telangana State Victim Compensation Scheme 2015 or AP Victim Compensation Scheme 2015 as the case may be.

However, recognising the absence of guidelines for victim compensation under the POCSO Act and Rules, the Hon’ble Supreme Court held vide its Order dated 5th September 2018 that until the POCSO Act and Rules are amended, “the NALSA’s Compensation Scheme should function as a guideline to the Special Court for the award of compensation to victims of child sexual abuse under Rule 7 until the Rules are finalized by the Central Government”, and “the legislation is gender neutral and, therefore, the Guidelines will be applicable to all children.”

As can be seen an amendment was brought to the POCSO Act 2012 and its Rules 2012 in the year 2020. Though an amendment was brought in the Rules of 2012 through The Protection of Children from Sexual Offences Rules 2020, which came into force from 9-3-2020, no much difference can be seen regarding the rules pertaining to the Compensation. Earlier, in the POCSO Rules 2012, compensation was dealt under the Rule 7. Now the same Rules unamended or unchanged appear under Rule 9. Rule 9 of the 2020 Rules is verbatim of the same as Rule 7 of the 2012 Rules. Now what is to be examined here is, in absence of the guidlines for victim compensation, whether the available Provisions and Rules in the POCSO Act 2012 and the Rules 2020 effectively empower the Special courts to deal with compensation to be paid to the child victims under the POCSO Act?

The POCSO Act & the Rules:

Section 33(8) of The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), empowers the Special Courts to direct payment of such compensation as may be prescribed to the child, for physical or mental trauma caused or for immediate rehabilitation, in addition to punishment.

A literal interpretation of Section 33(8) may suggest that compensation can be ordered only if the accused is convicted under the POCSO Act. But this appears to be a narrow interpretation. As can be noticed, the statutory direction is that the compensation shall be ordered to be paid in the appropriate cases by the court as may be prescribed. Then who has to prescribe?.It further states that compensation can be ordered by the Special court only for any ‘physical or mental trauma’ or ‘for immediate rehabilitation’ of child. Thus there appears some restrictions in the provison.

Now let us examine whether the above limitations in Sec.33(8) of the POCSO Act restrict the Special court in granting compensation to the victims effectively?

Sub-section (8) of Section 33 of the POCSO Act, falls within chapter VIII “Procedure and powers of Special Court”. Rule 9( Rule 7 earlier) of the POCSO Rules, 2020 expands upon this provision and prescribes how, when, and on the basis of what factors, compensation can be directed by Special Courts. Sub-Rule (2) of Rule 9 of the POCSO Rules 2020 is to be read with Sec.33(8) of the POCSO Act. From a reading of Rule 9 (1),(2) of the POCSO Rules 2020, it becomes clear that the Special Court is competent to award either interim compensation or final compensation or both for meeting the immediate relief and rehabilitation needs of the child. It further states that the Special court on its own or on an application filed by or on behalf of the child, may award compensation. Rule 7(3) of the POCSO Rules, specifies 12 factors related to the loss or injury caused to the victim, that the Special Court should consider before making “a direction for the award of compensation to the victim” under Section 33(8) read with Section 357-A (2 & 3) of Cr.P.C. The Special court thus has to take the relevant factors provided in sub-rule (3) of Rule 9 into consideration to decide the quantum of compensation to be paid to the victim. Rule 9(4) of the POCSO Rules states that the compensation awarded should be paid from the Victim Compensation Fund or any other Government scheme for compensating and rehabilitating victims under Section 357-A. While it is not clear under Section 33(8) whether the State can be directed to pay compensation,t he Rules, thus, suggest that the State Government can be ordered to pay compensation. And as per Rule 9(5) it is clear that the compensation ordered shall be paid by the State Government within 30 days of the receipt of the order.

A reading of sec.33(8) of the POCSO Act shows that there is a direction that compensation shall be ordered to be paid in the appropriate cases by the court as may be prescribed. Then who has to prescribe?. Thus parameters and method for calculation of the amount of compensation in cases of varied nature have to be prescribed by the legislation in terms of Sec.45 of the POCSO Act. But such statutory direction under sec.33(8) of the POCSO Act for the compensation payable to the child victim to be prescribed does not find place in the subordinate legislation notifide in terms of power to make rules under S.45 of the POCSO Act. We can find such prescription at Sl.No.6 of the Schdule of TSVCS 2015 and as well in the Schedule of APVCS 2015. Even the schedule of Additional Chapter of TSVCS and NALSA Scheme also prescribe the maximum compensation to be paid to the victims.Since the Special court is empowered to decide and award the compensation to the victim, it can take the Schdule of State Victim Compensation Schemes into consideration for the pupose of deciding the quantum of compensation to be awarded as no separate Schedule is provided in the Rules of the POCSO Rules 2020 prescribing the amount. The State Schemes of our both states specifically prescribe the amount of compensation to be paid to the child victims for various offences. Sub-Rule(4) of Rule 9 of the POCSO Rules makes it clear that the State Government has to pay the compensation ordered from ‘Victim Compensation Fund’.The SLSA deals with Victim Compensation Fund constituted by the State. Therefore DLSA has role in taking steps for making payments of compensation ordered by Special court under the POCSO Act to the victims. The following are the Schedules mentioned in the stae schemes of both state.

Schedules:

Andhra Pradesh Victim Compensation Scheme-SCHEDULE

Telangana State Victim Compensation Scheme-SCHEDULE

Sl.NoDescription of Loss or injuryMaximum limit of compensation
6.Loss or Injury causing severe mental agony to women and child victims in cases like Human Trafficking, Rape cases,Acid cases,Kidnapping and molestation etc.
Rs.10,00,000/-

NALSA Compensation Scheme for Women Victims/ Survivors of Sexual Assault/Other Crimes- SCHEDULE

Sl.No.Particulars of loss or injuryMinimum limit of compensationUpper limit of compensation.
1.Loss of LifeRs. 5 lakhRs.10 lakh
2.Gang RapeRs.5 lakhRs.10 lakh
3.RapeRs.4 lakhRs.7 lakh
4.Unnatural Sexual AssaultRs.4 lakhRs.7 lakh
9Grievous physical injury or any mental injury requiring rehabilitationRs.1 lakhRs.2 lakh
11In case of pregnancy on account of rapeRs.3 lakhRs.4 lakh.

As can be observed from the above schedules, no minimum limit of compensation was prescribed either in AP VCS or in TSVCS. The AP State adopted the NALSA’s Compensation Scheme for Women Victims/ Survivors of Sexual Assault/Other Crimes as such. Whereas the Telangana State added the NALSA’s Scheme as Additional Chapter to TSVCS.

When the Special Court, under sub-section (8) of S.33 of the POCSO Act read with sub-sections (2) and (3) of S.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, and shall pass award set in the Schedule of the notification.

To say that there is no confusion regarding victim compensation under the POCSO Act and to gather more support to the statement that Section 33(8) of The Protection of Children from Sexual Offences Act, 2012 (POCSO Act) empowers the Special Courts to direct the payment of compensation to the victim for physical or mental trauma caused to the child, or for immediate rehabilitation, let us have further more discussion.

InGAYA PRASAD PAL v. STATEthe Hon’ble Delhi High Court was of the view that the order of the Special Court for two separate amounts of compensation payable under Section 33(8) of the POCSO Act R/w Rule 7(2) and under Section 357A of Cr.P.C read with Rules 7(3) and 7(4) of the POCSO Rules, respectively was an incorrect application of the law. This goes to suggest that in POCSO cases, compensation has to be paid under the POCSO Act only and not separately under Sec.357A of Cr.P.C. The Hon’ble High Court concluded that “the consideration of an award of compensation under section 33(8) of POCSO has to be confined, therefore, to the Scheme under rule 7(4) of the POCSO Rules.”

In its 240th Report on the POCSO Bill, 2011,the Department related Parliamentary Standing Committee on Human Resource Development (Standing Committee) highlighted the apparent lack of clarity in Section 33(8) as to whether compensation is payable by the offender or the State?. The clarification given by the Ministry of Women and Child Development to the Standing Committee on this point is insightful about the power of the Special Court to determine quantum and award compensation:

“15.5 Clarification given by the Ministry was that this sub-clause should be left to the judgment of the courts to decide where it was appropriate to award compensation to the child. It may also be left to the court to decide the manner and quantum of the compensation to be paid as per available provisions in law or government schemes/programmes whether of the Centre or the State including a part of the penalty imposed on the accused to be paid as compensation. It was also mentioned that a considered view has been taken in consultation with the Ministries of Home Affairs and Law to leave the quantum of fine to the discretion of the court so as to address different situations as has been the case in IPC in respect of serious offences.”

(emphasis supplied)”.

The narrow interpretation that compensation can be ordered only if the accused is convicted under the POCSO Act can be ruled out on a reading of the Rule 9(2)( earlier R7(2)) of the POCSO Rules coupled with Section 357A of Cr.P.C and in the light of the objectives of the POCSO Act. Under Rule 9(2) compensation can be awarded if the accused either convicted or acquitted, or discharged when the child suffered loss or injury in the opinion of the Special Court’s opinion. Compensation can be paid even if the accused was not traced or identified or untraceable, if according to the Special Court, the child suffered loss or injury.

Section 33(8) of the POCSO Act cannot be construed as a mere reiteration of Section 357 and 357-A of Cr.P.C. The expression used is “direct payment”, which distinguishes it from the obligation of the trial court to consider whether payment of compensation can be recommended to the SLSA or DLSA. As has been held by the Hon’ble Supreme Court in numerous cases, a legislation should be read in its entirety and its objectives should be considered if there is any ambiguity.

The Hon’ble Calcutta High Court in Bijoy’s case (C.R.A. 663/2016 decided on 02.03.17 BIJOY v. STATE OF WEST BENGAL 2017 Cril. J. 3893) held that: “conjoint reading of the Section 33(8) of the Act along with Rule 7 of the Rules made it amply clear that the power of the Special Court to award interim/final compensation is not restricted to the terms of the Victim Compensation Fund promulgated by the State but empowers the Court to award such reasonable and just amount as may be determined by it in the facts of the case in the light of the parameters laid down in Rule 7(3) of the aforesaid Rules to provide succour to a child victim”.

The matter came to rest once and for all as the judgment in THE MINOR THROUGH GUARDIAN ZAREEN v. STATE (Government of NCT Delhi), W.P. (Crl) 798/2015 clarified that:

“the reading of Section 33 of the POCSO Act would show that the power has been given to the Special Court to grant compensation and there is no outer limit which has been fixed while granting the compensation”

A Special Court therefore, cannot be bound by the limitations of a State VCS and can offer speedy relief to a victim of a sexual offence under the POCSO Act by determining the quantum of compensation payable by the accused or the State Government.

Why the Special court has to award and why not the DLSA under the scheme?

Let us examine the challenges in determination of compensation by DLSA/SLSA in case of offences under the POCSO Act than by the Special court.

With an intetion of ensuring speedy relief to the victim, the Special courts might have been empowered to direct payment of interim or final compensation. If the duty is entrusted with DLSA for deciding and to award compensation, the very intention of empowering the Special Court will be frustrated. Under the State Schemes, the DLSA/SLSAs are required to inquire into the claims and ensure that the eligibility conditions are strictly complied with. These processes invariably delays despite the stipulation of time limits within the Schemes. That apart, it may amount to subjecting the victim to secondary victimization forcing her to appear before another forum, narrate the incident, and follow-up on the application.

Under the IPC, the definition of rape is not gender neutral qua the victim and compensation for an offence under Section 377 of IPC is not listed in the Schedule in most State VCS including State of AP. This results in the exclusion of male child victims of sexual offences from compensation. Further, compensation for other sexual offences such as sexual assault, aggravated sexual assault, sexual harassment, and using a child for pornography are not covered under the Schedule annexed to the State Victim Compesation Scheme. Children subjected to these offences are thus left without any recourse under the State VCSchemes or can only avail the small sum prescribed for rehabilitation. However, this defect to some extent can be covered by Sl.No.6 of the Schedule of TSVCScheme since it refers to the child victims.

Another limitation is that DLSA/SLSAs are bound by the conditions and limitations of the State VCSchemes. To become eligible for compensation under State schemes, the victim has to cooperate with the police and prosecution during the investigation and trial of the case. If the victim does not cooperate, she becomes ineligible to receive compensation under State Victim Compensation Schemes. This qualification can be seen in AP and TS VCSchemes also. There is no such express reference to the requirement that the child has to support the prosecution’s case in Special court. The POCSO Act and Rules do not link the payment of compensation to the child’s testimony in court. Making compensation contingent on cooperation with the prosecution means that it will not become available to victims when they need it the most. At such time, if money is offered by the accused and his family, it is even possible that the victim’s family may accept it and turn hostile. But no such limitations are imposed on the Special -court under the POCSO Act and Rules. Sparingly, sometimes, depending on the facts and circumstances of cases, courts may order compensation even though victims have turned hostile. This option may not be available to the DLSA/SLSA under the States’ schemes.

Another point to be noted here is that the VCSchemes of most States, as per which a victim who has received assistance or relief from the State Government or any other source is ineligible to receive compensation under the scheme, or the amounts must be adjusted. ParaNo.7(4) of of TS VCscheme 2015 and 7(5) of APSVCS 2015 state about the compensation received by the victim from the collateral sources of the State. It provides that such compensation received by the victim from the collateral sources of the State shall be deemed to be compensated under this Scheme. If the eligible compensation amount exceeds the payment received by the victim from the above collateral sources of the state, the balance amount only shall be paid out of the Fund to the victim. ParaNo.7(5) of APSVCS, adds the compensation granted by State/National Human Rights Commission or any court has to be considered as part of compensation under this State Scheme 2015.

The above discussion goes to suggest that a Special Court therefore can offer speedy relief to a victim of a sexual offence under the POCSO Act by determining the quantum of compensation payable by the accused or the State Government.

Kinds of compensation available under the POCSO Act:

A combined reading of Rule 8,9 of the POCSO Rules 2020 provide that victim under the POCSO Act can seek Special Relief, Interim compensation and Final compensation.

The word ‘compensation’ has not been defined in the Cr.P.C. nor in the POCSO Act nor in the POCSO Rules nor in the VCScheme. However, whatever connotation is attached to the word ‘compensation’ would also attach to the phrase ‘interim compensation’, which would mean compensation paid at the interim stage of the proceedings in a given matter.

The State compensates for the injury or loss to victims by providing monetary compensation. The loss may be direct (medical expenses as a result of incident) or indirect like loss of employment or relocation due to the incident. In cases of sexual abuse the purpose of compensation is to serve the immediate as well as long term need of survivor (and sometime of the family as well) to help recover from the loss suffered.

From a reading of Rule 9 (1),(2) of the POCSO Rules 2020 it becomes clear that the Special Court is competent to award either interim compensation or final compensation or both for meeting the immediate relief and rehabilitation needs of the child. It further states that the Special court on its own or on an application filed by or on behalf of the child may award compensation.

Interim relief/ compensation:

The primary objective of granting an interim compensation should have been to save life and then to cater to other needs.

Special Court may order compensation on an interim basis to meet immediate needs of the child for relief and rehabilitation at any stage after registration of FIR.Interim relief includes medical support and/or first aid facility as well as any other relief that may be required in the situation, thereby including financial assistance as well.

Further, Rule 7(3)[now Rule 9] of the POCSO Rules provides that the criteria to be taken into account while fixing the amount of compensation to be paid include the severity of the mental or physical harm or injury suffered by the child; the expenditure incurred or likely to be incurred on his/her medical treatment for physical and/or mental health; and any disability suffered by the child as a result of the offence. Hence, the child may recover the expenses incurred on his/her treatment in this way.

Interim relief, as per TSVCScheme even includes monetary assistance to the victim. Interim(monetary) compensation can be granted upto 25% of the maximum compensation awardable as per the TSVCS. As can be seen from ParaNo.6 of APSVCS, interim relief including monetary relief refers to cases of victims of acid attack. But under Sec.357A(6) of Cr.P.C, interim relief or compensation has to be granted to the victims of other deserving cases other than acid attack cases where the case requires grant of such interim relief.

Multiple Applications for Interim Compensation:

Whether Multiple Applications for Interim Compensation can be made?

Hon’ble Delhi High Court in Writ Petition (Crl.) 3244/2019, dated 15 th June 2020 [MOTHER MINOR VICTIM No. 1 & 2 vs STATE AND OTHERS.] held that:

“Although Sub Rule (1) of Rule 7 of the said Rules (and in Sub-rule (1) of Rule 9 of the Protection of Children from Sexual Offences Rules, 2020) does not indicate that multiple applications for interim compensation can be made; nonetheless, since the said provision for compensation is a beneficial provision, the same must be considered liberally. Since there is no express bar which restricts the Special Courts to grant interim compensation only once, an application for further interim compensation can be considered by the Learned. ASJ, provided there are sufficient grounds for seeking further interim compensation. Needless to state that any further interim compensation awarded would also be liable to be adjusted with the compensation as awarded at the final stage as postulated in Sub-rule (1) of Rule 7 of the said Rules (and in Sub-rule (1) of Rule 9 of the Protection of Children from Sexual Offences Rules, 2020”.

(emphasis supplied)

The quantum of the compensation shall be fixed taking into consideration the loss and injury suffered by the victim and other related factors as laid down in Rule 7(3) of the Protection of Children from Sexual Offences Rules, 2012 and shall not be restricted to the minimum amounts prescribed in the Victim Compensation Fund. Such interim compensation paid to the child shall be adjusted against the final compensation, if any awarded by the Special Court in conclusion of trial in terms of section 33(8) of the Act. Interim compensation loses its meaning as Special Courts do not dispose of the application until the child has testified in court and does not turn hostile. If the Court declines to pass interim or final compensation it shall record its reasons for not doing so.

Special Relief:

Rule 8 of the Rules 2020 states about a Special Relief to be provided to the victim to meet contingencies such as food, clothes, transport and other essential needs required by the child at that stage(the very initial stage). It is the CWC (Child Welfare Committee) which assess such amount to be required to the child at that stage and may recommend immediate payment of the same to the DLSA under sec.357A Cr.P.C. In such case, the DLSA has to take steps for getting the granted amount paid under Special Relief from Victim compensation Fund through SLSA within a week of receipt of recommendation from the CWC.

Final compensation:

As per Rule 7(1) and 7(2) of the POCSO Rules, a victim is entitled to both interim compensation for meeting the immediate relief and rehabilitation needs of the child and final compensation, irrespective of the outcome of the case in terms of conviction, acquittal or discharge, and also if the accused remains untraced or unidentified.

How much amount should be awarded? Are there any limits to the quantum of compensation that can granted by the Special Courts?

The Hon’ble Supreme Court in YADAVA KUMAR vs NATIONAL INSURANCE CO. LTD. & ANR., in the context of a motor accident claim, has very clealry explained the concept of ‘compensation’ in the following words:

“17.The High Court and the Tribunal must realise that there is a distinction between compensation and damages.The expression compensation may include a claim for damages but compensation is more comprehensive.Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief.Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there can not be any rigid or mathematical precision in the matter of determination of compensation.” (emphas is supplied)]

Applying the ruling of Hon’ble Supreme Court in ANKUSH SHIVAJI GAIKWADcase the Hon’ble Sikkim High Court held in DEO KUMAR RAI v. STATE of SIKKIM, that Section 33(8) of the POCSO Act and Rule 7 of POCSO Rules impose a mandatory obligation on the Special Court to “apply its mind to the question of the award or refusal of compensation” in a case under the POCSO Act.

The Victim Compensation Fund is the vehicle through which the compensation may be paid by the State Government, and in no way limits the powers of the Special Court in determining the amount of compensation.

Delhi is the first State to have settled the confusion regarding victim compensation in cases under the POCSO Act. Since the law refers to Section 357A of the CrPC, for a long time the Special Courts and Juvenile Justice Boards hearing matters under the POCSO Act were forwarding all applications for interim-compensation to the SLSA/DLSA instead of using their powers under Section 33 (8) of the POCSO Act and deciding the compensation as per provisions of Rule 7 of the POCSO Rules. Even when the special courts started exercising their powers to grant compensation under the POCSO Act and Rules, they were confining their decision on the amount to the scheme prescribed under the Delhi Victim Compensation Scheme.

It was held in THE MINOR THROUGH GUARDIAN ZAREEN v. STATE (Govt of NCT of Delhi) W.P.(CRL) 798/2015 that “The definition under Section 357 (A) is very wide and would in fact even cover cases which are covered under The Protection of Children from Sexual Offences Act, 2012 but then the reading of Section 33 of the Act would show that the power has been given to the Special Court to grant compensation and there is no outer limit which has been fixed while granting the compensation.”

Thus power has been given to the Special Court to grant compensation and there is no outer limit which has been fixed while granting the compensation, though the Schedules of our both States Victim Compensation Schemes provide amount of compensation to be granted with upper limit.

Quantifying compensation amount:

What is the basis on which the compensation amount is decided?

Sub-Rule (3) of Rule 7 of the POCSO Rules indicates the factors which are to be taken into account by the court in determining the appropriate award of compensation to the victim child.

Rule 7(3) of the POCSO Rules specifies 12 factors related to the loss or injury caused to the victim, that the Special Court should consider before making “a direction for the award of compensation to the victim” under Section 33(8) read with Section 357-A (2 & 3) of Cr.P.C.

Those are:

-Type of abuse, gravity of the offence and the severity of the mental or physical harm or injury suffered by the child;

– The expenditure incurred or likely to be incurred on child’s medical treatment for physical and/ or mental health;

– Lack 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; etc.

-The abuse of the close relationship of the child to the offender; the fact as to whether the sexual abuse was a protracted one and as to whether the offence resulted in pregnancy leading to a live birth would be integral and essential part of the consideration of the “expenditure incurred or likely to be incurred for restoring the physical or mental health, as well as loss of enagagment in gainful activity” are to be born in mind.

Here a quetion arise is that Are these factors underSub-Rule (3) of Rule 7(now Rule 9) of POCSO Rulesto beconsidered only for determining final compensation or also for determining interim compensation?

In BIJOY v. STATE of WEST BENGAL (2017 Cril. J. 3893) the Hon’ble Culcutta High court directed that “the Special Court upon receipt of information as to commission of any offence under the Act by registration of FIR shall on his own or on the application of the victim make enquiry as to the immediate needs of the child for relief or rehabilitation and upon giving an opportunity of hearing to the State and other affected parties including the victim pass appropriate order for interim compensation and/or rehabilitation of the child”. The Hon’ble court further held that “Compensation envisaged under the aforesaid provision of law may be awarded by the Special Court at the interim stage also for immediate relief and rehabilitation of a child victim in light of the parameters laid down under Sub-Rule (3) of Rule 7 of the aforesaid Rules. This interim compensation may be awarded by the Special Court, independent of, and in addition to the compensation payable by the convict or accused under section 357(2) and (3) of the Code”.

Rule 7(6) of [ now Rule 9] of the POCSO Rules clarifies that a child or a child’s parent or guardian or a person whom the child trusts or has confidence in, is not prevented from seeking relief under other rules or Government schemes.

Compensation to male child victims:

The Hon’ble Delhi High Court in THE MINOR THROUGH GUARDIAN ZAREEN v STATE addressed the issue of discrimination of the male child victim as well as their right to compensation and awarded compensation to the male child victim.

Table for comparison:

It will be more appropriate and convenient to refer to a contrasting compensation under the POCSO Act and Rules and the Cr.P.C to have more clarity regarding the aspect of compensation to victims.

FactorsPOCSO Act &RulesSec.357A of Cr.P.CSec.357 of Cr.P.C
For what Pupose compensation is payable for.Physical or mental trauma. Immediate rehabilitation. Loss/InjuryLoss or injury as a result of crime. RehabilitationLoss or injury caused by the offence.
Who can awardSpecial court can direct payment.Trial court can recommend.Trial court can order.
Is Conviction of accused necessary?NoNoYes
Whether victim necessarily to support Police &Prosecution. Is payment is linked with it.There is no express reference to such requirement.Yes. Both AP &TS VCSchemes made such requirement as one of the eligibilites and refer to expressely.There is no express reference to such requirement. But trial shall end in conviction.
Who has to pay compensation.State GovernmentState GovernmentAccused
Who determines quantum of compensation.Special CourtDistrict Legal Service Authority/State Legal Service Authority.Trial court.
Whether interim compensation can be paid?Yes. For immediate needs of the child for relief or rehabilitation.Yes. Immediate free first – aid facility of medical benefits on certificate of police office incharge of station or Magistrate.No

Disbursement of compensation:

There is lack of clarity on procedures for disbursing the compensation, especially in cases where the child has no family support, or resides in a childcare institution without parental support, or there is apprehension that the compensation so awarded may be misused.

It is relevant here to refer to the procedure contemplated under the State Victim Compensation Schemes of our States regarding the victim compensation disbursement so as to consider the same as guidlines while dealing with the compensation granted by the Special courts.

The power to give permission to withdraw the amount from the account of the minor victim or amounts kept in FDRs to meet emergency needs like educational or medical needs is given to the DLSA besides SLSA as per the TSVC Scheme. However, ParaNo.7(4) of APVCScheme provides that it is the DLSA which has to disburse the awarded compensation amount to the victim.

The compensation has to be deposited in a Nationalized Bank of the victim or her dependents. Thus, as per ParaNo.8(1) of TSVC scheme 2015, the disbursement shall be through Bank. ParaNo.7(4) of APSVC Scheme refers to the payment through Cheque.

ParaNo.8(1) of TSVC Scheme 2015 and Para No.11(1) of Additional chapter i.e., NALSA’s Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other crimes, 2018 provides that in case the victim does not hold bank account, DLSA concerned has to fecilitate opening of the a bank account in the name of the victim. If the vicitm is minor, the account shall be opened in the name of minor along with guardian. In case the minor has no guardian or is in child care institution, the bank account is required to open by showing the Superintendednt of the Home as guardian. In case of the victim is foreign national or refugee, the compensation has to be paid by way of Cash Cards.

Para No.11 of Additional chapter of TVCS and Para No. 11 of “NALSA’s Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other crimes, 2018 provides that out of the amount so deposited, 75 per cent of the same is put in a Fixed Deposit for a minimum period of (3)three years and the remaining 25 per cent shall be made available for the utilization and initial expenses by the victim as the case may be. In case of a minor, 80 per cent amount of the compensation is to be deposited which can be drawn only on attainment of the age of majority, but not before three years of the deposition. However, in exceptional cases, the aforesaid amount may be withdrawn for educational or medical needs of the beneficiary at the discretion of the DLSA.The interest on the same has to be credited directly by the bank in the Saving Account of the victim/dependent on monthly basis. As per Para No.11(3) of Additional chapter, the interest accrued on the Fixed Deposit amount shall be credited directly to the Saving Account of the victim/dependant on monthly basis which can be withdrawn by beneficiary.

ParaNo.8(2) of TSVCScheme 2015 makes it clear that the compensation amount awarded to the minor victim shall be deposited in the bank account of the minor as Fixed Deposit and it has to be withdrawn only on attainment of his majority. In exception cases the compensation kept in Fixed Deposits can be withdrawn for the purpose of educational or medical needs or any urgent needs of the beneficiary. Who is the competent person to withdraw such amount of minor -victim to meet the above needs has to be decided by the DLSA or Appellate Authority. Not only that, Proviso of Para No.11(2) of Additional Chapter states that discretionary power to decide the urgent needs or exceptional needs of the minor beneficiary is given to SLSA/DLSA. This goes to show that an application for withdrawl of the amount to meet minor needs has to be made before the DLSA/SLSA. Similar to Para No.8(2) of TSVC Scheme does not find place in the APSVCS.

In case of granting interim compensation, ParaNo.12 of Additional Chapter provides that as soon as the application for compensation is received by the SLSA or DLSA, a sum of Rs.5000/- or as the case warrants upto Rs.10,000/- shall be immediately disbursed to the victim through pre-loaded Cash Card from a Nationalised Bank by the Secretary DLSA or the Member Secretary SLSA.

Coming to the POCSO cases,as majority of victims of sexual abuse belong to the low-income group, the compensation is essential to meet the immediate needs for relief and rehabilitation of the child. But sometimes Bank Managers create difficulties by putting the entire amount in a Fixed Deposit, even if it is interim compensation granted to meet the immediate needs of the child for which money is require Bank Accounts is a huge problem as many children do not have proper documents. In case the Bank Account is not opened, the Investigating Officer shall assist the child in opening a Bank Account in any Nationalised Bank.

Further the CWC(child welfare committe) also shall coordinate with the DLSA to ensure that any amount of fine imposed by the Special Court under the Act shall be paid to the child. The CWC will also facilitate any procedure for opening a Bank Account, arranging for identity proofs, etc., with the assistance of DCPU( District Child Protection Unit) and support person.

After going through the Provisions of POCSO Act and Rules, we do find some questions left with no answers. The term used in Section 33 (8) is “child”, i.e. a living child. What about compensation for a child who dies as a result of sexual assault or during the course of trial? Who will get the compensation in that case? Use of both “victim” and “child” is confusing and raises the same question about whether a deceased child is entitled to compensation? Will definition of ‘victim”under Section 2 (wa) of the (Cr.P.C.) apply? What is meant by “any stage after registration of FIR”?. What will happen in cases where the accused is a child in conflict with the law (CICL) and no FIR is registered as the alleged offence does not fall in the category of heinous offences? When do Special Courts first interact with the child? How do the Special Courts then determine the immediacy of the need? Should the payment of interim compensation only be granted after the child testifies? Should the Special Court pass an order on final compensation as part of the judgement, even if an application for compensation is rejected? The POCSO Rules make no provision for one who is born from the rape of the child and would be covered under the definition of both victim as well as dependent on the victim. These are to be answered.

Awareness on Victim compensation:

Are the Special Courts neglecting their duty to award compensation under the POCSO Act? The statistics reveal the fact that compensation was not considered in every case that resulted in a conviction and in most cases that resulted in an acquittal, even though the victim had sustained loss or injury, or become pregnant. It is relevant here to refer to the recent circular issued by-Hon’ble TSLSA vide ROC No.1956/TSLSA/AW/2021 dated:24-06-2021 wherein it is observed that the recommendations from the regular courts as well as Special courts either for fixing of compensation or for payment of compensation to the victims is very less and it is even nil in one or two districts. It is further observed that: “…there is every need for the chairmen of the DLSAs to conduct workshops or meetings with the Judicial officers of the Unit and impress upon them the need of Awarding compensation to the victims, depending on the facts and circumstances of the case”.

Special Courts should also apply the Hon’ble Supreme Court’s decision in Ankush Shivaji Gaikwad and proactively consider payment of compensation by not just the accused, but also the State Government, in every case under the POCSO Act. To ensure that compensation is promptly received by the victim, as ordered by Special court in Guntur in STATE v. AVANIGADDA YESU BABU (S.C. No 14/2014 decided on 05.12.2016),the DLSA/SLSA should be directed to submit a compliance report within 30 days of the order and should be emulated to operationalize the compensation provisions under the POCSO Act and Rules.

Conclusion:

The provisions regarding the compensation under the POCSO Act and Rules are based on Section 357A of CrPC, with suitable changes, to ensure immediate and speedy relief to the child. Under the POCSO Act and Rules, the Special Courts can decide the question of victim compensation and also determine the quantum of compensation and accordingly make a direction for award of compensation. The said compensation shall be payable by the State Government through Schemes or Funds established for such purpose.

Considering the description of the POCSO Act as a “self-contained comprehensive legislation”, its emphasis on ensuring the well-being of the child at every stage and the establishment of Special Courts for trial of offences, it can be said that the POCSO Act empowers Special Courts to determine the quantum of compensation.

Section 33(8) of The Protection of Children from Sexual Offences Act, 2012 (POCSO Act), empowers the Special Courts to direct payment of compensation in addition to punishment, for physical or mental trauma caused to the child, or for immediate rehabilitation. Rule 9( Rule 7 earlier) of POCSO Rules, 2020 expands upon this provision and prescribes how, when, and on the basis of what factors, compensation can be directed by the Special Courts. Inclusion of such provisions within a penal statute is because the POCSO Act is intended as “a self-contained comprehensive legislation” for protection of children from sexual offences, with emphasis on the best interest and well-being of the child at every stage of the criminal process, and “to ensure the healthy physical, emotional, intellectual and social development of the child.

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