Kerala High Court on 357A

Coverage of this article

KEY TAKEAWAYS

-The case in which this landmark judgement was cited is District Collector Alappuzha v. District Legal Service Authority, Alappuzha and others in WP (C) No. 7250 of 2014 (E).

INTRODUCTION

-Although addressing the key issue relating to the enforceability of Section 357A(4) CrPC. to misdemeanours performed subsequent to the entering into force of that clause, it is climacteric to analyse the objects and explanations for the amendment to be instituted.

FURTHER DETAILS

-Section 357A(4) CrPC reads, “Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.”

BACKGROUND

-The legitimate heirs of one late Sri Sivadas are respondents 2 to 4. In a car accident that occurred on March 26, 2008, Sri. Sivadas had died to his injuries. 

CONCLUSION

-In the past two decades, the criminal justice system has witnessed a dramatic transformation in its methodology to the dispensing of criminal justice.

KERALA HIGH COURT RULED THAT SECTION 357A(4) OF THE CRPC IS A SUBSTANTIVE PROVISION; VICTIMS ENTITLED TO COMPENSATION EVEN FOR CRIMES THAT OCCURRED PRIOR TO ITS ENACTMENT

KEY TAKEAWAYS

·The case in which this landmark judgement was cited is District Collector Alappuzha v. District Legal Service Authority, Alappuzha and others in WP (C) No. 7250 of 2014 (E).

· In its ruling, the High Court of the state of Kerala that sufferers under Section 357A(4) CrPC for crimes that occurred prior to 31.12.2009 are empowered to claim compensation.

· The judgement was given by the Bench of Justice Bechu Kurian Thomas on 22 December, 2020.

INTRODUCTION

Although addressing the key issue relating to the enforceability of Section 357A(4) CrPC. to misdemeanours performed subsequent to the entering into force of that clause, it is climacteric to analyse the objects and explanations for the amendment to be instituted.

Justice Bechu Kurian Thomas stated that "By giving the benefit to victims under Section 357A(4) CrPC., for crimes that occurred prior to 31.12.2009, the statutory provision is not given retrospective effect, and instead a prospective benefit is given based on an antecedent fact." Although the remuneration to be received according to Section 357 CrPC is punitive, the reward given under Section 357A is rehabilitative in essence. With the observations of the Supreme Court relating to compensatory justice in criminal law in Hari Singh v. Sukhbir Singh and Others [(1988) 4 SCC 551], it was felt that the principles of compensation to crime victims need to be reviewed and expanded to cover all cases.

 Evaluating that Section 357A(1)(4)&(5) of the CrPC. provides a right to a survivor in situations where the perpetrator is not monitored or established and the prosecution is held.

No reimbursement has been obtained from the Government of the State for the recovery of the plaintiff, the Judge said, "It has created and defined rights for a victim, and a duty upon the State Government to pay compensation. Thus Section 357A(1)(4)&(5) CrPC., is a substantive law and not procedural law."

FURTHER DETAILS

Section 357A(4) CrPC reads, “Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.”

The Senior Government Adjudicator asserted that under Section 357A(4)&(5) of the CrPC., the obligation to the State to pay damages to the dependents of a survivor. In the case of a felony that happened on 26-03-2008, drawing on an amended provision, introduced into action only on 31.12.2009 and based on the application for 2013, it is completely unjust and contrary to the constitutional requirements.

Also it was acknowledged by the State that Section 357A(4) of the CrPC. ought not be allowed a retrospective methodology, because the economic implications of such an understanding would be so colossal for the Government that the fiscal policy of the State would disintegrate.

In the other hand, the counsellor for defendants 2 to 4 (dependents) asserted that the provision frequently stretches to precedents of wrongdoing and that the principle of Section 357A is analogous to a conventional torturer under civil law and a constitutional effort to impose Section 357A of the CrPC. In a constrained environment, the State was also to create a shared tortfeasor.

It was also opined that the premise of restitution of the injured is not a radical cause enforced by Section 357A CrPC., but is a provision that has already been implicit in Article 21 of the Constitution of India.

With the emergence of the ideology of victim justice, the ostensible intention of which was not to provide penalties comparable to those of lawsuits of tortious liability, but to provide relief, by means of punishment from the government coffers, to the harm suffered, whether or not the defendant had been taken to trial, a new organization was inserted into criminal law.

Pressingly, the Court stated that, according to Section 357A(4) of the CrPC., a survivor is somebody who experiences some harm or damage as a consequence of the action or negligence of another one of which the perpetrator has not yet been found and against which the prosecution has not occurred because such an understanding alone will render Section 357A(4) of the CrPC. doable and meaningful.

BACKGROUND

The legitimate heirs of one late Sri Sivadas are respondents 2 to 4. In a car accident that occurred on March 26, 2008, Sri. Sivadas had died to his injuries. While a case was documented by the Alappuzha Traffic Police, the perpetrator could not be detected or tracked and the prosecution had not taken place. In 2013, the legal heirs of the deceased Sivadas claimed for reimbursement from the State to the District Legal Services Body, Alappuzha, under Section 357A(4) of the Code of Criminal Procedure, 1973.

As per the petition, an investigation was carried out by the Additional District Judge, Alappuzha, who was designated as the Enquiry Officer, as defined for in Section 357A(5) CrPC. On 12-09-2013, the enquiry report was presented. The report concluded that the claimants were the legitimate descendants of the late Sivadas and that he was 52 years of age and a casual labourer at the time of his death. Furthermore, on the basis of the report, the State of Kerala was directed by the High Court to pay an amount of Rs. 3,03,000 to those affected by the death of the individual. This order of the HC was contended by the State.

CONCLUSION

In the past two decades, the criminal justice system has witnessed a dramatic transformation in its methodology to the dispensing of criminal justice. With the perpetrator, a forgotten person, criminal jurisprudence has always been convicted of being homogenous. The survivor has very little part in the scheme of criminal justice. That being said, with the implementation of the victim protection doctrine, with its ostensible objective not to pay damages analogous to those of proceedings of tortuous liability, but to provide affirmation, by means of compensation from the public purse, for the harm caused, whether or not the perpetrator was taken to trial, a new share holder was introduced in the criminal procedure.

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