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GRANT OF COMPENSATION TO A VICTIM IN A PROSECUTION UNDER THE POCSO ACT

Lawyers of Pakistan > Uncategorized  > GRANT OF COMPENSATION TO A VICTIM IN A PROSECUTION UNDER THE POCSO ACT

GRANT OF COMPENSATION TO A VICTIM IN A PROSECUTION UNDER THE POCSO ACT

“The principles of victimology have their foundations in Indian constitutional jurisprudence. The fundamental rights under Part III and the directive principles of state policy in Part IV of the Constitution of India form the bulwark for a new social order. The social and economic justice provided in Article 38 and Article 41, which mandates the State to secure the right to public assistance in case of disablement and undeserved want, Article 51A which makes it a fundamental duty to have compassion for living creatures and to develop humanism. According to the Law Commission of India, if the above Constitutional provisions are expanded and interpreted imaginatively, they could form the constitutional underpinnings for victimology in India.”( Hon’ble J Bechu Kurian Thomas -in 2021 (1) KHC 111)

Grant of compensation to a victim in a prosecution under the POCSO Act is outlined in S.33(8) of the said Act read with R.7 of the Protection of Children from Sexual Offences Rules, 2012 . In Kerala , as per the Notification dated SRO No 755/2017 dated 05.11.2017 (GO (MS) 224/2017/Home, The Government of Kerala has introduced Kerala Victim compensation Scheme 2017.

“S.33(8) POCSO Act.—

In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child. 33. R.7 of the Rules is as under: –

R.7. Protection of Children from Sexual Offences Rules.

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.

(The Special Court may, (A) on its own or (B) 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 S.33 of the 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, 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;

(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.

 

COMPENSATION AWARDED BY THE SPECIAL COURT IS TO BE PAID BY THE STATE GOVERNMENT

(4) The compensation recommended /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 S.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) 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.”

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COMPENSATION MAY BE AWARDED BY THE SPECIAL COURT AT THE INTERIM STAGE

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 R.7 of the aforesaid Rules.

As pert the Rule 7 Sections, the Special Court can pass order of Interim Compensation at any stage after registration of the First Information Report but where the accused is convicted, Special Court can only recommend the award of compensation to the DLSA.

 

In the interim, therefore, the situation is that there are no Guidelines or Rules that are applicable on the basis of which the Special Court can pass appropriate orders. Such interim compensation paid to the child shall be adjusted against the final compensation, if any.

 

Such compensation payable by the State is independent of the compensation which may be directed to be paid by the convict upon conviction in terms of S.357(2) and (3) of the Code.

The philosophy of awarding compensation by the State is in the nature of a reparation to the victim of crime on its failure to discharge its sovereign duty to protect and preserve sanctity and safety of the individual from the ravages of such crime.

MINIMUM AMOUNT OF COMPENSATION THAT MAY BE AWARDED FOR VARIOUS OFFENCES / INJURIES

As per the Kerala Victim Compensations Scheme 2017 notified by the State under S.357A Cr.P.C., which, inter alia, prescribes the minimum amount of compensation that may be awarded for various offences / injuries in the manner as set in the schedule of the notification. Benefits of the Kerala Victim Compensations Scheme 2017 is applicable to all the victim. As per the Scheme, either the recommendation from the Trial court or on a application under sub section (4) of the Section 357 A of the Cr PC , District Legal service Authority Shall , after due enquiry DLSA shall decide the quantum of compensation(Section 357 A (2) and shall award compensation within 2 months (357 A (5).

When the Special Court under sub-section (8) of S.33 of the 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.

GRANT OF COMPENSATION TO A VICTIM IN A PROSECUTION UNDER THE POCSO ACT

 

“The principles of victimology have their foundations in Indian constitutional jurisprudence. The fundamental rights under Part III and the directive principles of state policy in Part IV of the Constitution of India form the bulwark for a new social order. The social and economic justice provided in Article 38 and Article 41, which mandates the State to secure the right to public assistance in case of disablement and undeserved want, Article 51A which makes it a fundamental duty to have compassion for living creatures and to develop humanism. According to the Law Commission of India, if the above Constitutional provisions are expanded and interpreted imaginatively, they could form the constitutional underpinnings for victimology in India.”( Hon’ble J Bechu Kurian Thomas -in 2021 (1) KHC 111)

 

Grant of compensation to a victim in a prosecution under the POCSO Act is outlined in S.33(8) of the said Act read with R.7 of the Protection of Children from Sexual Offences Rules, 2012 . In Kerala , as per the Notification dated SRO No 755/2017 dated 05.11.2017 (GO (MS) 224/2017/Home, The Government of Kerala has introduced Kerala Victim compensation Scheme 2017.

“S.33(8) POCSO Act.—

In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child. 33. R.7 of the Rules is as under: –

R.7. Protection of Children from Sexual Offences Rules.

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.

(The Special Court may, (A) on its own or (B) 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 S.33 of the 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, 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;

(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.

 

COMPENSATION AWARDED BY THE SPECIAL COURT IS TO BE PAID BY THE STATE GOVERNMENT

(4) The compensation recommended /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 S.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) 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.”

 

 

 

COMPENSATION MAY BE AWARDED BY THE SPECIAL COURT AT THE INTERIM STAGE

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 R.7 of the aforesaid Rules.

As pert the Rule 7 Sections, the Special Court can pass order of Interim Compensation at any stage after registration of the First Information Report but where the accused is convicted, Special Court can only recommend the award of compensation to the DLSA.

 

In the interim, therefore, the situation is that there are no Guidelines or Rules that are applicable on the basis of which the Special Court can pass appropriate orders. Such interim compensation paid to the child shall be adjusted against the final compensation, if any.

 

Such compensation payable by the State is independent of the compensation which may be directed to be paid by the convict upon conviction in terms of S.357(2) and (3) of the Code.

The philosophy of awarding compensation by the State is in the nature of a reparation to the victim of crime on its failure to discharge its sovereign duty to protect and preserve sanctity and safety of the individual from the ravages of such crime.

MINIMUM AMOUNT OF COMPENSATION THAT MAY BE AWARDED FOR VARIOUS OFFENCES / INJURIES

As per the Kerala Victim Compensations Scheme 2017 notified by the State under S.357A Cr.P.C., which, inter alia, prescribes the minimum amount of compensation that may be awarded for various offences / injuries in the manner as set in the schedule of the notification. Benefits of the Kerala Victim Compensations Scheme 2017 is applicable to all the victim. As per the Scheme, either the recommendation from the Trial court or on a application under sub section (4) of the Section 357 A of the Cr PC , District Legal service Authority Shall , after due enquiry DLSA shall decide the quantum of compensation(Section 357 A (2) and shall award compensation within 2 months (357 A (5).

When the Special Court under sub-section (8) of S.33 of the 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.

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