SURESH &ANR.versusSTATE OF HARYANA

                       [2014] 13 S.C.R. 760


A                       SURESH &ANR.
                                v.
                      STATE OF HARYANA
                (Criminal Appeal No. 420 of 2012)
B
                      NOVEMBER 28, 2014
    [V. GOPALA GOWDA AND ADARSH KUMAR GOEL, JJ.)
        Penal Code, 1860- ss. 302134, 364-A, 201and120-8
C - Kidnapping and murder of two persons - Conviction by
  courts below - On appeal, held: Conviction justified -
  Recovery of dead bodies of the deceased and their personal
  belongings at the instance of the accused and the failure to
  explain the fact within the exclusive knowledge of the accused
o is an additional circumstance against them - Evidence Act,
  1872-s. 106.
        Code of Criminal Procedure, 1973 - s. 357A - Interim
  compensation - Grant of - Held: ft is duty of the Court to
  grant interim compensation to victim either on application or
E suo motu - Such duty continues at every stage of the case -
  In the present case, denial of interim compensation by High
  Court was not justified - State directed to pay Rs. 10 lakhs
  as interim compensation to the family of the deceased.
F        Disposing of the appeal, the Court
       HELD: 1. In the present case, Section 106 of the
  Evidence Act is clearly attracted which requires the
  accuse·d to explain the facts in their exclusive
  knowledge. No doubt, the burden of proof is on the
G prosecution and Section 106 i.s not meant to relieve it of
  that duty but the said provision is attracted when it is
  impossible or it is proportionately difficult for the
  prosecution to establish facts which are strictly within
H the knowledge of the accused. Recovery of dead bodies
                                760
            SURESH v. STATE OF HARYANA                    761


from covered gutters and personal belongings of the A
deceased from other places disclosed by the accused
stood fully established. It casts a duty on the accused
as to how they alone had the information leading to
recoveries which was admissible under Section 27 of
the Evidence Act. Failure of the accused to give an B
explanation or giving offalse explanation is an additional
circumstance against the accused. Therefore, the
conviction and sentence of the appellants cannot be
interfered with. [Paras 8 and 9][766-F-H; 767-B-C]
                                                          c
     State of Rajasthan v. Jaggu Ram 2008 (12) SCC
     51 - relied on.
      2.1 The object and purpose of s.357 A Cr.P.C. is to
enable the Court to direct the State to pay compensation
to the victim where the compensation under Section 357 D
was not adequate or where the case ended in acquittal
or discharge and the victim was required to be
rehabilitated. Even after expiry of 5 years since the
enactement of Section 357A, the award of compensation
has not become a rule and interim compensation,· which E
is very important, is not being granted by the Courts.
The upper limit of compensation fixed by some of the
States is arbitrarily low and is not in keeping with the
object of the legislation. [Paras 12 and 13][767-G-H; F
793-G-H; 794-A]
     2.2 It is the duty of the Courts, on taking cognizance
of a criminal offence, to ascertain whether there is
tangible material to show commission of crime, whether
the victim is identifiable and whether the victim of crime G
needs immediate financial relief. On being satisfied on
an application or on its _own motion, the Court ought to
direct grant of interim compensation, subject to final
compensation being determined later. Such duty
continues at every stage of a criminal case where · H
762      SUPREME COURT REPORTS               [2014] 13 S.C.R.


A compensation ought to be given and has not been given,
  irrespective of the application by the victim. At the stage
  of final hearing it is obligatory on the part of the Court to
  advert to the provision and record a finding whether a
  case for grant of compensation has been made out and,
B if so, who is entitled to compensation and how much.
  Award of such compensation can be interim. Gravity of
  offence and need of victim are some of the guiding
  factors to be kept in mind, apart from such other factors
  as may be found relevant in the facts and circumstances
C of an individual case. [Para 14][794-B-E]
        2.3 There is also need to consider upward revision
   in the scale for compensation and pending such
   consideration to adopt the scale notified by the State of
 D Kerala in its scheme, unless the scale awarded by any
   other State or Union Territory is higher. The States of
   Andhra Pradesh, Madhya Pradesh, Meghalaya and
   Telangana are directed to notify their schemes. It is also
   directed that a copy of this judgment be forwarded to
 E National Judicial Academy so that all judicial officers in
   the country can be imparted requisite training to make
   the provisJon operative and meaningful.[Para 14]
   (794-E-G]
 F         2.4 In the present case, the petition for
    compensation to the family members of deceased has
     been dismissed by the High Court without any reason.
     In fact even without such petition, the High Court ought
    to have awarded compensation. Thus, the State is liable
 G to pay compensation to the family of the deceased u/s.
   · 357-A Cr.P.C. The interim compensation payable for the
     two deaths to be rupees ten lacs, without prejudice to
     any other rights or remedies of the victim family in any
     other proceedings. The same would be payable by the
 H State Legal Services Authority. [Para 15](795-A-C]
             SU RESH v. STATE OF HARYANA                      763


     Ankush Shivaji Gaikwad v. State of Maharashtra           A
     2013 (8) SCR 863: (2013) 6 SCC 770; Re: Indian
     Woman says gang-raped on orders of Vi/age
     Court pulished on Business and Financial News
     2014 (4) scR 264 : (2014) 4 sec 1.86;
     Mohammad. Haroon v. Union of India (2014) 5              B
     SCC 252; Laxmi v. Union of India (2014) 4 SCC
     427; Abdul Rashid v. State of Odisha & Ors. (2014)
     1 ILR-CUT-202 - referred to.
                    Case Law Reference:                       c
     (2008) 12 sec 51             relied on.      Para 8
    . 2013 (8) SCR 863            referred to. Para 12
     2014 (4) SCR 264             referred to. Para 12
                                                              D
     (2014) 5 sec 252             referred to. Para 12
     (2014) 4 sec 427             referred to. Para 12
     (2014) 1 ILR-CUT-202         referred to. Para 12
    CRIMINAL APPELLATE JURISDICTION: Criminal
                                                              E
Appeal No. 420 of 2012.
     From the Judgment and Order dated 17.09.2009 of the
High Court of Punjab and Haryana at Chandigarh in Criminal
Appeal No. 182-DB of 2004
                                                              F
     R. S. Suri, Sr. Adv., Ms. Shabana, Ms. Shama Praveen,
Harinder Mohan Singh, Advs. for the Appellants.
    Roopansh Purohit, Dr. Monika Gusain, Ramesh
Shokeen, Advs. for the Respondent.
     The Judgment of the Court was delivered by
                                                              G

     ADARSH KUMAR GOEL J. 1. This appeal has been
preferred against conviction and sentence of the appellants
under Sections 302 read with Sections 34, 364-A, 201 and
120-B of the Indian Penal Code.                               H
764       SUPREME COURT REPORTS                 [2014] 13 S.C.R.


A          2. Case of the prosecution is that on 181h December,
   2000, the deceased Devender Chopra and his son deceased
   Abhishek Chopra had left their factory fortheir house in D.L.F.,
   Gurgaon but did not reach their house. At about 9.41 P.M.,
   PW-12 Pooja Chopra, daughter of Devender Chopra gave a
 B call to her father to find out as to why he was late. She learnt
   that her father and brother had been kidnapped and ransom
   of rupees fifty lacs was demanded for their release. She
   contacted her father's business partner informing him that
   Devender Chopra and Abhishek Chopra were kidnapped and
 C the kidnappers had demanded a ransom amount of rupees
   fifty lacs on telephone. The ~id nappers also talked to the wife
   of the deceased Devender Chopra at 11 P.M. demanding
   ransom money. Raman Anand also talked to Devender
 D Chopra. There were frequent calls from the kidnappers from
   the morning of 191h December, 2000 which were recorded on
   audio cassettes EX. P1 to P9. Since, the family could not fulfil
   the demand and offer to pay rupees ten lacs was not accepted
    by the kidnappers but negotiations continued. The police was
 E not informed on account of the fear that the victims may be
    killed as was threatened. When the kidnappers did not release
    Devender Chopra and Abhishek Chopra, and finding no way
    out, the matter was reported to the police on 24 1h December,
    2000 at 5 A.M. Statement of PW-2, Raman Anand EX. PC
 F was recorded by Inspector Randhir Singh (PW-17) who
    deputed police officials at nearby STD booths. PW-14, SI
    Rajender Singh found the accused at STD booth Jawala Petrol
    Pump on Jaipur Highway at 8.15A.M. He overheard accused
    Manmohan telling accused Suresh that ransom demand be
 G not reduced below rupees twenty five lacs. He was in plain
    clothes and gave signal to PW-17 and the accused were
    apprehended. A slip EX. P-35 carrying residential phone
    number of Devender Chopra was recovered from Manmohan .
    Ashok accused made disclosure statement EX. PS that
 H Devender Chopra and Abhishek Chopra had been killed and
             SU RESH v. STATE OF HARYANA                        765
               [ADARSH KUMAR GOEL, J.]

their bodies thrown in gutters in Sectors-39 and 46. Mobile of A
Devender Chopra was kept concealed in the house of the
accused. Accused Manmohan i:nade similar disclosure
statement EX. PT and that he had kep! concealed car of the
deceased in his house at Palwal and a knife in his rented house
at Sohna. Accused Suresh made similar disclosure statement B
EX. PJ and that he had concealed mobile of the deceased at
the shop of his brother at Sohna. Accused Mahesh made
similar disclosure statement EX. PV and that suitcase of the
deceased was concealed in his old house. Accordingly,
recoveries were effected. Post mortem of dead bodies was C
conducted and other steps for investigation were completed.
      3. After investigation, the accused were sent up for trial.
The prosecution examined Dr. B.K. Rajora (PW-1 ), complainant
Raman Anand (PW-2), Mrs. Vivek Bharti, Additional Chief D
Judicial Magistrate, Bhiwani (PW-3), Head Constable Naresh
Kumar (PW-6), Sub Inspector Balwan Singh (PW-7), Mahabir
Singh (PW-8), Assistant Sub Inspector Budh Ram (PW-9),
Surender Singh Rahman (PW-10), Head Constable Mohan
Lal (PW-11 ), Pooja Chopra (PW-12), Sub Inspector Sanjeev E
Kumar (PW-13), Sub Inspector Rajender Singh (PW-14 ), Brij
Bhushan Mehta (PW-15), Sub Inspector Shakuntla (PW-16)
and Inspector Randhir Singh (PW-17) and produced
documents and material exhibits. The accused denied the
prosecution allegations.                                          F
     4. After considering the evidence on record the trial Court
convicted and sentenced the appellants for kidnapping and
murder and concealing evidence in conspiracy and by common
intention. All the accused stand sentenced to undergo G
imprisonment for life and other lesser sentences which have
been affirmed by the High Court.
     5. We have heard learned counsel forthe parties.

                                                                 H
766         SUPREME COURT REPORTS                   [2014] 13 S.C.R.


A           6.Learned counsel for the appellants submitted that there
      was no legal evidence to sustain the conviction and that the
      evidence of disclosure ~atements and recoveries was not
      reliable.
 B         7. Learned counsel for the State opposed the above
   statement and pointed out that the dead bodies were recovered
   at the instance of the appellants, apart from the recovery of
   car and personal belongings of the deceased. SI Rajender
   Singh (PW-14) and Inspector Randhir Singh (PW-17) had
 c overheard the conversation of the accused making demand
   of ransom on telephone at the STD Booth. The accused
   refused to give their voice sample as recorded in the Order
   dated 1st January, 2001 passed by the Additional Chief Judicial
   Magistrate, Gurgaon on application (Exhibit PF). Pooja
 D Chopra (PW-12) deposed that the deceased Devender
   Chopra had a talk with her mother on 18th December, 2000
   that the deceased had been kidnapped for ransom which was
   followed up by further conversation with the kidnappers.
   Raman Anand (PW-2) also had talks with the kidnappers from
 E the mobile phone of his friend Neeraj. According to the post
   mortem reports, the death of Devender Chopra was on account
   of strangulation and cutting of throat by sharp weapon. Death
   of Abhishek Chopra was on account of stab injuries in chest
   and abdomen and the head injury caused by blunt force impact.
 F
           8. Apart from the above, this is a case where Section
    106 of the Evidence Act is clearly attracted which requires the
    accused to explain the facts in their exclusive knowledge. No
    doubt, the burden of proof is on the prosecution and Section
 G 106 is not meant to relieve it of that duty but the said provision
    is attracted when it is impossible or it is proportionately difficult
   for the prosecution to establish facts which are strictly within
    the knowledge of the accused. Recovery of dead bodies from
    covered gutters and personal belongings of the deceased from
 H other places disclosed by the accused stood fully established.
                 SU RESH v. STATE OF HARYANA                       767
                   [ADARSH KUMAR GOEL, J.]

  It casts a duty on the accused as to how they alone had the A
  information leading to recoveries which was admissible under
  Section 27 of the Evidence Act. Failure of the accused to give
  an explanation or giving of false explanation is an additional
  circumstance against the accused qs held in number of
  judgments, including State of Rajasthan vs. Jaggu Ram 1• B
        9. In view of the above, we do not find any ground to
  interfere with the conviction and sentence of the appellants.
  The appellants are on bail. They may be taken into custody
  for undergoing the remaining sentence.                           c
          10. We had asked learned counsel for the parties to make
    their submissions as to applicability of Section 357 A of the
    Code of Criminal Procedure providing for compensation by
·-- the State to the victims of the crime and also requested Shri L.
    Nageshwara Rao, Additional Solicitor General of India to assist D
    the Court on this aspect.
        11. Accordingly, Shri Rao has made his submissions and
  also furnished a written note of his submissions mentioning
  the legislative history and purpose of the said provision and    E
  the guidelines for determining the quantum of compensation
  and the power of Court to grant the interim compensation. We
  place on record our appreciation for the valuable contribution
  ofShri Rao.
        12. It would now be appropriate to deal with the issue. F
  The provision has been incorporated in the Cr.P.C. vide Act V
  of 2009 and the amendment duly came into force in view of
  the Notification dated 31st December, 2009. The object and
  purpose of the provision is to enable the Court to direct the G
  State to pay compensation to the victim where the
  compensation under Section 357 was not adequate or where
  the case ended in acquittal or discharge and the victim was
  required to be rehabilitated. The provision was incorporated
  1
      (2oos)12 sec 51
                                                                   H
768         SUPREME COURT REPORTS                 [2014] 13 S.C.R.


A on the recommendation of 1541h Report of Law Commission.
  It recognises compensation as one of the methods of protection
  of victims. The provision has received the attention of this
  Court in several decisions including Ankush Shiva;; Gaikwad
  vs. State of Maharas~tra 2, In Re: Indian Woman says gang-
s raped on orders of Village Court published in Business
  and Financial News 3, Mohammad Haroon vs. Union of
  lndia 4 and Laxmi vs. Union of lndia 5 . In Abdul Rashid vs.
  State of Odisha & Ors. 6 , to which one of us (Goel, J.) was
  party, it was observed:-
C
            "6. Question for consideration is whether the
           responsibility of the State ends merely by registering a
           case, conducting investigation and initiating
           prosec1:1tion and whether apart from taking these steps,
 D         the State has further responsibility to the victim. Further
           question is whether the Court has legal duty to award
           compensation irrespective of conviction or acquittal.
           When the State fails to identify the accused or fails to
           collect and present acceptable evidence to punish the
 E         guilty, the duty to give compensation remains. Victim
           of a crime or his kith and kin have legitimate expectation
           that the State will punish the guilty and compensate the
           victim. There are systemic or other failures responsible
           for crime remaining unpunished which need to be
 F         addressed by improvement in quality and integrity of
           those who deal with investigation and prosecution, apart
           from improvement of infrastructure but punishment of
           guilty is not the only step in providing justice to victim.
           Victim expects a mechanism for rehabilitative
 G         measures, including monetary compensation. Such
      2 (2013) 6 sec   no
      3
        (2014) 4 sec 786
      4 (2014) s sec 2s2

      5(2014)4SCC427
 H    6 (2014) 1 ILR-CUT-202
         SU RESH v. STATE OF HARYANA                              769
           [ADARSH KUMAR GOEL, J.]

 compensation-has been directed to be paid in p(.Jblic            A
 law remedy with reference to Article 21. In numerous
-cases, to do justice to the victims, the Hon'ble Supreme
 Court has directed payment of monetary compensation
 as well as rehabilitative settlement where State or other
 authorities failed to protect the life and liberty of victims.   B
 For example, Kewal Pa ti Vs. State of U.P. (1995) 3 SCC
 600 (death of prisoner by co-prisoner), Supreme Court
 Legal Aid Committee Vs. State of Bihar, (1991) 3 SCC
 482 (failure to provide timely medical aid by jail
 authorities, Chairman, Rly. Board Vs. Chandrima Das,             C
 (2000) 2 SCC 465 (rape of Bangladeshi national by
 Railway staff), Nilabati Behera Vs. State of Orissa,
 (1993) 2 SCC 746 (Custodial death), Khatri (I) Vs. State
 of Bihar (1981) 1 SCC 623 (prisoners' blinding by jail           D
 staff), Union Carbide Corporation Vs. Union of India,
 (1989) 1 sec 674 (gas leak victims).
7. Expanding scope of Article 21 is not limited to
providing compensation when the State or its
functionaries are guilty of an act of commission but also         E
to rehabilitate the victim or his family where crime is
committed by an individual without any role of the State
or its functionary. Apart from the concept of
compensating the victim by way of public law remedy
in writ jurisdiction, need was felt for incorporation of a        F
specific provision for compensation by courts
irrespective of the result of criminal prosecution.
Accordingly, Section 357A has been introduced in the
Cr.P.C. and a Scheme has been framed by the State of
Odisha called 'The Odisha Victim Compensation                     G
Scheme, 2012:. Compensation under the said Section
is payable to victim of a crime in all cases irrespective
of conviction or acquittal. The amount of compensation
may be worked out at an appropriate forum in                      H
770   SUPREME COURT REPORTS                  [2014] 13 S.C.R.


A     accordance with the said Scheme,- but pending such
      steps being taken, interim compensation ought to be
      given at the earliest in any proceedings.
      8. In Ankush Vhivaji Gaikwad Vs. State of Maharashtra,
      (2013) 6 sec 770, the matter was reviewed by the
 B
      Hon'ble Supreme Court with reference to development
      in law and it was observed:
      "33. The long line of judicial pronouncements of this
      Court recognised in no uncertain terms a paradigm shift ·
 c    in the approach towards victims of crimes who were held
      entitled to reparation, restitution or compensation for
      loss or injury suffered by them. This shift from retribution
      to restitution began in the mid 1960s and gained
      momentum in the decades that followed. Interestingly
 D    the clock appears to have come full circle by the law
      makers and courts going back in a great measure to
       what was in ancient times common place. Harvard Law
       Review (1984) in an article on "Victim Restitution in
       Criminal Law Process: A Procedural Analysis" sums up
 E     the historical perspective of the concept of restitution
       in the following words:
          "Far from being a novel approach to sentencing,
        . restitution has been employed as a punitive sanction
 F        throughout history. In ancient societies, before the
          conceptual separation of civil and criminal law, it was
          standard practice to require an offender to reimburse
          the victim or his family for any loss caused by the
          offense. The primary purpose of such restitution was
 G        not to compensate the victim, but to protect the
          offender from violent retaliation by the victim or the
          community. It was a means by which the offender
          could buy back the peace he had broken. As the state
          gradually established a monopoly over the institution
 H
         SU RESH v. STATE OF HARYANA                          771
           [ADARSH KUMAR GOEL, J.]

    of punishment, and a division between civil and A
    criminal law emerged, the victim's right to
    compensation was incorporated into civil law."
 34. With modem concepts creating a distinction between
 civil and criminal law in which civil law provides for       B
 remedies to award compensation for private wrongs and
 the criminal law takes care of punishing the wrong doer,
 the legal position that emerged till recent times was that
 criminal law need not concern itself with compensation
 to the victims since compensation was a civil remedy         c
 that fell within the domain of the civil Courts. This
 conventional position has in recent times undergone a
 notable sea change, as societies world over have
 increasingly felt that victims of the crimes were being
 neglected by the legislatures and the Courts alike.          o
 Legislations have, therefore, been introduced in many
 countries including Canada, Australia, England, New
 Zealand, Northern Ireland and in certain States in the
 USA providing for restitution/reparation by Courts
 administering criminal justice.                              E
   35. England was perhaps the first to adopt a separate
   statutory scheme for victim compensation by the State
·• 1;mdert1Je
    ..   . .. Criminal
                .· ,, . ..·Injuries Compensation Scheme,
   1964. Under the Criminal Justice Act, 1972 the idea of F
   payment of compensation by the offender was
   introduced. The following extract from the Oxford
   Handbook of Criminology (1994 Edn., p.1237-1238),
   which has been quoted with approval in Delhi Domestic
   Working Women's Forum v. Union of India and Ors. G
   (1995) 1SCC14 is apposite: (SCC pp.20-21, para-16)
    "16 ...... Compensation payable by the offender was
    introduced in the Criminal Justice Act 1972 which
    gave the Courts powers to make an ancillary order
                                                              H
772   SUPREME COURT REPORTS                   [2014] 13 S.C.R.


A       for compensation in addition to the main penalty in
        cases where 'injury', loss, or damage' had resulted.
        The Criminal Justice Act 1982 made it possible for
        the first time to make a compensation order as the
        sole penalty. It also required that in cases where fines
B       and compensation orders were given together, the
        payment of compensation should take priority over
        the fine. These developments signified a major shift
        in penology thinking, reflecting the growing
        importance attached to restitution and reparation
c       over the more narrowly retributive aims of
        conventional punishment. The Criminal Justice Act
         1982 furthered this shift. It required courts to consider
        the making of a compensation order in every case
        of death, injury, loss or damage and, where such an
 D
        order was not given, imposed a duty on the court to
        give reasons for not doing so. It also extended the
        range of injuries eligible for compensation. These
        new requirements mean that if the court fails to make
        a compensation order it must furnish reasons. Where
 E
        reasons are given, the victim may apply for these to
        be subject to judicial review ..... .
        The 1991 Criminal Justice Act contains a number of
        provisions which directly or indirectly encourage an
 F      even greater role for compensation."' (emphasis
        supplied)
      36. In the United States of America, the Victim and
      Witness Protection Act of 1982 authorizes a federal
      court to award restitution by means of monetary
 G
      compensation as a part of a convict's sentence.
      Section 3553(a)(7) of Title 18 of the Act requires Courts
      to consider in every case "the need to provide restitution
      to any victims of the offense". Though it is not mandatory
 H
       SU RESH v. STATE OF HARYANA                          773
         [ADARSH KUMAR GOEL, J.]

for the Court to award restitution in every case, the Act A
<f.emands that the Court provide its reasons for denying
the same. Section 3553(c) of Title 18 of the Act states
as follows:
  "If the court does not order restitution or orders only   B
  partial restitution, the court shall include in the
  statement the reason thereof." (Emphasis supplied)
37. In order to be better equipped to decide the quantum
of money to be paid in a restitution order, the United
States federal law requires that details such as the C
financial history of the offender, the monetary loss
caused to the victim by the offence, etc. be obtained
during a Presentence Investigation, which is carried out
over a period of 5 weeks after an offender is convicted.
                                                         D
38. Domestic/Municipal Legislation apart even the UN
General Assembly recognized the right of victims of
crimes to receive compensation by passing a resolution
titled "Declaration on Basic Principles of Justice for
Victims and Abuse of Power, 1985". The Resolution E
contained the following provisions on restitution and
compensation:
                     "Restitution
   8. Offenders or third parties responsible for their F
   behaviour should, where appropriate, make fair
   restitution to victims, their families or dependants.
   Such restitution should include the return of property
   or payment for the harm or loss suffered,
   reimbursement of expenses incurred as a result of G
   the victimization, the provision of services and the
   restoration of rights.
   9. Governments should review their practices,
   Regulations and laws to consider restitution as an
                                                            H
774   SUPREME COURT REPORTS                [2014] 13 S.C.R.


A      available sentencing option in criminal cases, in
       addition to other criminal sanctions.
       10. In cases of substantial harm to the environment,
       restitution, if ordered, should include, as far as
       possible, restoration of the environment,
B
       reconstruction of the infrastructure, replacement of
       community facilities and reimbursement of the
       expenses of relocation, whenever such harm results
       in the dislocation of a community.
c      11. Where public officials or other agents acting in
       an official or quasi-official capacity have violated
       national criminal laws, the victims should receive
       restitution from the State whose officials or agents
       were responsible for the harm inflicted. In cases where
D      the Government under whose authority the
       victimizing act or omission occurred is no longer in
       existence, the State or Government successor in title
       should provide restitution to the victims.

 E                  Compensation
       12. When compensation is not fully available from
       the offender or other sources, States should
       endeavoufto provide llnanciat compensation to:
 F     (a) Victims who have sustained significant bodily
       injury or impairment of physical or mental health as
       a result of serious crimes;
       (b) The family, in particular dependants of persons
       who have died or become physically or mentally
 G     incapacitated as a result of such victimization.
       13. The establishment, strengthening and expansion
       of national funds for compensation to victims should
       be encouraged. Where appropriate, other funds may
 H     a/so be established for this purpose, including in
       SU RESH v. STATE OF HARYANA                           775
         [ADARSH KUMAR GOEL, J.]

  those cases where the State of which the victim is a       A
  national is not in a position to compensate the victim
  for the harm."
39. The UN General Assembly passed a resolution
titled "Basic Principles and Guidelines on the Right to
                                                        8
a Remedy and Reparation for Victims of Gross
Violations of International Human Rights Law and
Serious Violations of International Humanitarian Law,
2005" which deals with the rights of victims of
international crimes and human rights violations. These      c
Principles (while in their Draft form) were quoted with
approval by this Court in State of Gujarat' and Anr. v.
Hon'ble High Court of Gujarat (1998) 7 SCC 392 in the
following words:
   "94. In recent years the right to reparation for victims D
  of violation of human rights is gaining ground. United
  Nations Commission of Human Rights has
  circulated draft Basic Principles and Guidelines on
  the Right to Reparation for Victims of Violation of
  Human Rights, (see Annexure)."                            E
40. Amongst others the following provisions on
restitution and compensation have been made:
  "12. Restitution shall be provided to reestablish the
  situation that existed prior to the violations of human    F
  rights or international humanitarian law. Restitution
  requires inter alia, restoration of liberty, family life
  citizenship, return to one's place of residence, and
  restoration of employment or property.
                                                             G
   13. Compensation shall be provided for any
   economically Assessable damage resulting from
   violations of human rights or international
   humanitarian law, such as:
                                                             H
776   SUPREME COURT REPORTS                  [2014] 13 S.C.R.

A       (a) Physical or mental harm, including pain, suffering
        and emotional distress;
        (b) Lost opportunities including education;
        (c) Material damages and loss of earnings, including
B       loss of earning potential;
        (d) Harm to reputation or dignity;
        (e) Costs required for legal or expert assistance,
        medicines and medical services."
C     41. Back home the Code of Criminal Procedure of 1898
      contained a provision for restitution in the form of
      Section 545, which stated in Sub-clause 1(b) that the
      Court may direct

D        "payment to any person of compensation for any
        loss or injury caused by the offence when substantial
        compensation is, in the opinion of the Court,
        recoverable by such person in a Civil Court".
      42. The Law Commission of India in its 41st Report
E     submitted in 1969 discussed Section 545 of the Code
      of Criminal Procedure of 1898 extensively and stated
      as follows:
         "46.12 .. Section 545- Under Clause (b) of Sub-
 F      section (1) of Section 545, the Court may direct "in
        the payment to any person of compensation for any
        loss or injury caused by the offence when substantial
        compensation is, in the opinion of the Court,
        recoverable by such person in a Civil Court." The
G       significance of the requirement that compensation
        should be recoverable in a Civil Court is that the act
        which constitutes the offence in question should also
        be a tort. The word "substantial" appears to have been
        used to exclude cases where only nominal damages
 H
       SURESH v. STATE OF HARYANA                            777
         [ADARSH KUMAR GOEL, J.]

  would be recoverable. We think it is hardly necessary A
  to emphasise this aspect, since in any event it is
  purely within the discretion of the Criminal Courts to
  order or not to order payment of compensation, and
  in practice, they are not particularly liberal in utilizing
  this provision. We propose to omit the word B
  "substantial" from the clause." (Emphasis supplied)
43. On the basis of the recommendations made by the
Law Commission in the above report, the Government
of India introduced the Code of Criminal Procedure Bill,     c
1970, which aimed at revising Section 545 and
introducing it in the form of Section 357 as it reads
today. The Statement of Objects and Reasons
underlying the Bill was as follows:
  "Clause 365 [now Section 357] which corresponds            D
  to Section 545 makes provision for payment of
  compensation to victims of crimes. At present such
  compensation can be ordered only when the Court
  imposes a fine the amount is limited to the amount
  of fine. Under the new provision, compensation can         E
  be awarded irrespective of whether the offence is
  punishable with fine and fine is actually imposed, but
  such compensation can be ordered only if the
  accused is convicted. The compensation should be           F
  payable for any loss or injury whether physical or
  pecuniary and the Court shall have due regard to
  the nature of injury, the manner of inflicting the same.
  the capacity of the accused to pay and other relevant
  factors." (Emphasis supplied)                              G
44. As regards the need for Courts to obtain
comprehensive details regarding the background of the
offender for the purpose of sentencing, the- Law
Commission in its 48th Report on "Some Questions
                                                             H
778       SUPREME COURT REPORTS              [2014] 13 S.C.R.


A     Under the Code of Criminal Procedure Bill, 1970"
      submitted in 1972 discussed the matter in some detail,
      stating as follows:
           "45. Sentencing- It is now being increasingly
           recognised that a rational and consistent sentencing
B
           policy requires the removal of several deficiencies
           in the present system. One such deficiencv is a lack
           of comprehensive information as to the
           characteristics and background of the offender.
c          The aims of sentencing-themselves obscure-
           become all the more so in the absence of
           comprehensive information on which the correctional
           process is to operate. The public as well as the as
           the courts themselves are in the dark about judicial
D          approach in this regard.
           We are of the view that the taking of evidence as to
           the circumstances relevant to sentencing should be
           encouraged, and both the prosecution and the
E          accused should be allowed to cooperate in the
           process." (Emphasis supplied)
      45. The Code of Criminal Procedure of 1973 which
      incorporated the changes proposed in the said Bill of
      1970 states in its Objects and Reasons that Section
F     357 was "intended to provide relief to the proper sections
      of the community" and that the amended CrPC
      empowered the Court to order payment of
      compensation by the accused to the victims of crimes
      "to a larger extent" than was previously permissible
G     under the Code. The changes brought about by the
      introduction of Section 357 were as follows:
      ·    (i) The word "substantial" was excluded.

H
       SU RESH v. STATE OF HARYANA                       779
         [ADARSH KUMAR GOEL, J.]

  (ii) A new Sub-section (3) was added which provides     A
  for payment of compensation even in cases where
  the fine does not form part of the sentence imposed.
  (iii) Sub-section (4) was introduced which states that
  an order awarding compensation may be made by B
  an Appellate Court or by the High. Court or Court of
  Session when exercising its powers of revision.
46. The amendments to the Code of Criminal
Procedure brought about in 2008 focused heavily on
the rights of victims in a criminal trial, particularly in C
trials relating to sexual offences. Though the 2008
amendments left Section 357 unchanged, they
introduced Section 357A under which the Court is
empowered to direct the State to pay compensation to
the victim in such cases where                             D
  "the compensation awarded Under Section 357 is
  not adequate for such rehabilitation, or where the
  case ends in acquittal or discharge and the victim
  has to be rehabilitated."                               E
  Under this provision, even if the accused is not tried
  but the victim needs to be rehabilitated, the victim
  may request the State or District Legal Services
  Authority to award him/her compensation. This
  provision was introduced due to the F
  recommendations made by the Law Commission of
  India in its 152nd and 154th Reports in 1994 and
  1996 respectively.
4 7. The 154th Law Commission Report on the Code of G
Criminal Procedure devoted an entire chapter to
'Victimology' in which the growing emphasis on victim's
rights in criminal trials was discussed extensively as
under:
                                                        H
780   SUPREME COURT REPORTS                 [2014] 13 S.C.R.


A      "1. Increasingly the attention of criminologists,
       penologists and reformers of criminal justice system
       has been directed to victimology, control of
       victimization and protection of victims of crimes.
       Crimes often entail substantive harms to people and
B      not merely symbolic harm to the social order.
       Consequently the needs and rights of victims of
       crime should receive priority attention in the total
       response to crime. One recognized method of
       protection of victims is compensation to victims of
c      crime. The needs of victims and their family are
       extensive and varied.
                    xx    xx     xx    xx    xx .
       9. 1 The principles of victimology has foundations in
 D     Indian constitutional jurisprudence. The provision on
       Fundamental Rights (Part Ill) and Directive Principles
       of State Policy (Part IV) form the bulwark for a new
       social order in which social and economic justice
       would blossom in the national life of the country
 E     (Article 38). Article 41 mandates inter alia that the
       State shall make effective provisions for "securing
       the right to public assistance in cases of disablement
       and in other cases of undeserved want." So also
       Article 51A makes it a fundamental duty of every
 F
       Indian citizen, inter alia 'to have compassion for living
       creatures' and to 'develop humanism'. If emphatically
       interpreted and imaginatively expanded these
       provisions can form the constitutional underpinnings
 G     for victimology.
       9.2 However, in India the criminal law provides
       compensation to the victims and their dependants
       only in a limited manner. Section 357 of the Code of
       Criminal Procedure incorporates this concept to an
 H
       SU RESH v. STATE OF HARYANA                         781
         [ADARSH KUMAR GOEL, J.]

  extent and empowers the Criminal Courts to grant         A
  compensation to the victims.
               xx   xx     xx   xx    xx
  11. In India the principles of compensation to crime
  victims need to be reviewed and expanded to cover        B
  all cases. The compensation should not be limited
  only to fines, penalties and forfeitures realized. The
  State should accept the principle of providing
  assistance to victims out of its own funds ..... "
48. The question then is whether the plenitude of the C
power vested in the Courts Under Section 357 & 357-
A, notwithstanding, the Courts can simply ignore the
provisions or neglect the exercise of a power that is
primarily meant to be exercised for the benefit of the
                                                        0
victims of crimes that are so often committed though
less frequently punished by the Courts. In other words,
whether Courts have a duty to advert to the question of
awarding compensation to the victim and record
r.easons while granting or refusing relief to them?     E
               xx    xx    xx    xx    xx
66. To sum up: While the award or refusal of
compensation in a particular case may be within the
Court's discretion, there exists a mandatory duty on the F
Court to apply its mind to the question in every criminal
case. Application of mind to the question is best
disclosed by recording reasons for awarding/refusing
compensation. It is axiomatic that for any exercise
involving application of mind, the Court ought to have G
the necessary material which it would evaluate to arrive
at a fair and reasonable conclusion. It is also beyond
dispute that the occasion to consider the question of
award of compensation would logically arise only after
                                                          H
782    SUPREME COURT REPORTS                   [2014] 13 S.C.R.


A      the court records a conviction of the accused. Capacity
       of the accused to pay which constitutes an important
       aspect of any order Under Section 357 Code of Criminal
       Procedure would involve a certain enquiry albeit
       summary unless of course the facts as emerging in the
B      course of the trial are so clear that the court considers it
       unnecessary to do so. Such an enquiry can precede
      ·an order on sentence to enable the court to take a view,
       both on the question of sentence and compensation
       that it may in its wisdom decide to award to the victim or
c      his/her family.
      67. Coming then to the case at hand, we regret to say
      that the trial Court and the High Court appear to have
      remained oblivious to the provisions of Section 357
D     Code of Criminal Procedure. The judgments under
      appeal betray ignorance of the Courts below about the
      statutory provisions and the duty cast upon the Courts.
      Remand at this distant point of time does not appear to
      be a good option either. This may not be a happy
E     situation but having regard to the facts and the
      circumstances of the case and the time lag since the
      offence was committed, we conclude this chapter in the
      hope that the courts remain careful in future."
      9. In Rohtash @ Pappu Vs. State of Haryana (Crl.A.
 F
      No. 250of 1999 decided on 1.4.2008, a Division Bench
      of the Punjab & Haryana High Court observed:
          "18. May be, inspite of best efforts, the State fails in
         apprehending and punishing the guilty but that does
G        not prevent the State from taking such steps as may
         reassure and protect the victims of crime. Should
         justice to the victims depend only on the punishment
         of the guilty? Should the victims have to wait to get
         justice till such time that the handicaps in the system
H
    SURESH v. STATE OF HARYANA                         783
      [ADARSH KUMAR GOEL, J.]

which result in large scale acquittals of guilty, are A
removed? It can be a long and seemingly endless
wait. The need to address cry of victims of crime, for
whom the Constitution in its Preamble holds out a
guarantee for ]ustice' is paramount. How can the tears
of the victim be wiped off when the system itself is B
helpless to punish the guilty for want of collection of
evidence or for want of creating an environment in
which witnesses can fearlessly present the truth
before the Court? Justice to the victim has to be
ensured irrespective of whether or not the criminal is C
punished.
19. The victims have right to get justice, to remedy
the harm suffered as a result of crime. This right is
different from and independent of the right to          o
retribution, responsibt1ity of which has been assumed
by the State in a society governed by Rule of Law.
But ifthe State fails in discharging this responsibility,
the State must still provide a mechanism to ensure
that the victim's right to be compensated for his injury E
is not ignored or defeated.
20. Right of access to justice under Article 39-A
and principle of fair trial mandate right to legal aid to
the victim of the crime. It also mandates protection F
to witnesses, counselling and medical aid to the
victims of the bereaved family and in appropriate
cases, rehabilitation measures including monetary
compensation. It is a paradox that victim of a road
accident gets compensation under no fault theory, G
but the victim. of crime does not get any
compensation, except in some cases where the
accused is held guilty, which does not happen in a
large percentage of cases.
                                                        H
784   SUPREME COURT REPORTS                [2014] 13 S.C.R.


A      21. Though a provision has been made for
       compensation to victims under Section 357 Cr.P.C.,
       there are several inherent limitations. The said
       provision can be invoked only upon conviction, that
       too at the discretion of the judge anti subject to
B      financial capacity to pay by the accused. The long
       time taken in disposal of the criminal case is another
       handicap for bringing justice to the victims who need
       immediate relief, and cannot wait for conviction, which
       could take decades. The grant of compensation
c      under the said provision depends upon financial
       capacity of the accused to compensate, for which,
       the evidence is rarely collected. Further, victims are
       often unable to make a representation before the
       Court for want of legal aid or otherwise. This is
D
       perhaps why even on conviction this provision is
       rarely pressed into service by the Courts. Rate of
       conviction being quite low, inter-alia, for competence
       of investigation, apathy of witnesses or strict
       standard of proof required to ensure that innocent is
 E
       not punished, the said provision is hardly adequate
       to address to need of victims.
       In Hari Krishan and State of Harvana v. Sikhbir Singh
       AIR 1998 SC 2127, referring to provisions for
 F     compensation, the Hon'ble Supreme Court
       observed:-
       "10. ...... This power was intended to do something to
       reassure the victim that he or she is not forgotten in
       the criminal justice system. It is a measure of
 G
       responding appropriately to crime as well of
       reconciling the victim with the offender. It is, to some
       extent, a constructive approach to crimes. It is indeed
       a step forward in our criminal justice system. We,
 H     therefore, recommend to all Courts to exercise this
     SU RESH v. STATE OF HARYANA                         785
       [ADARSH KUMAR GOEL, J.]

power liberally so as to meet the ends ofjustice in a A
better way."
22. It is imperative to educate the investigating
agency as well as the trial Judges about the need to
provide access to justice to victims of crime, to collect
                                                          8
evidence about financial status of the accused. It is
a/so imperative to create mechanisms for
rehabilitation measures by way of medical and
financial aid.to the victims. The remedy in civil law of
torts against the injury caused by the accused is c
grossly inadequate and illusory.
23. This unsatisfactory situation is in contrast to global
developments and suggestions of Indian experts as
well. Some of the significant developments in this
regard may be noticed as under:-                           D

1) UN Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, 1985,
highlighting the following areas:-
(i) Access to Justice and fair treatment;                 E
(ii) Restitution;
(iii) Compensation;
(iv) Assistance.
                                                          F
2) Council or Europe Recommendation on the
Position of the Victim in the Framework of Criminal
Law and Procedure, 1985.
3) Statement of the Victims'Rights in the Process of
Criminal Justice, issued by the European Forum for G
Victims' Services in 1996.
4) European Union Framework Decision on the
Standing of Victims in Criminal Proceedings.
                                                          H
786   SUPREME COURT REPORTS                [2014] 13 S.C.R.


A      5) Council of Europe Recommendations on
       assistance to Crime victims adopted on 14.6.2006.
       6) 152nd and 154th report of the Law Commission
       of India, 1994 and 1996 respectively, recommending
       introduction of Section 357-A in criminal procedure .
B
       code, prescribing, inter-alia, compensation to the
       victims of crime.
       7) Recommendations of the Malimath Committee,
       2003.
c      24. The subject matter has been dealt with by experts
       from over 40 countries in series of meetings and a
       document has .been developed in cooperation with
       United Nations Office at Vienna, Centre for
       International Crime Prevention and the compilation
D
       under the heading "Handbook on Justice for
       Victims" which deals with various aspects of impact
       of victimization, victims assistance programmes and
       role and responsibility of frontline professionals and
 E     others to victims. The South African Law
       Commission, in its "Issue Paper 7" (1997) under the
       heading "Sentencing Restorative Justice:
       Compensation for victims of crime and v!,ctim.
       empowerment" has deliberated on various relevant.. .
 F     aspects of this issue.
                    xx     xx   xx    xx    xx
       27. In Malimath Committee Report (March 2003),
       it was observed:-
 G     "6. 7.1 Historically speaking, Criminal Justice System
       seems to exist to protect the power, the privilege and
       the values of the elite sections in society. The way
       crimes are defined and the system is administered
       demonstrate that there is an element of truth in the
 H
     SU RESH v. STATE OF HARYANA                               787
       [ADARSH KUMAR GOEL, J.]

above perception even in modern times. However,                A
 over the years the dominant function of criminal
justice is projected to be protecting all citizens from
harm to either their person or property, the
assumption being that it is the primary duty of a State
 under rule of law. The State does this by depriving           B
individuals of the power to take law into their own
 hands and using its power to satisfy the sense of
 revenge through appropriate sanctions. The State.
 (and society), it was argued, is itself the victim whef"/
 a citizen commits a crime and thereby questions its           C
 norms and authority. In the process of this
 transformation of torts to crimes, the focus of attention
 of the system shifted from the real victim who suffered
 the injury (as a result of the failure of the state) to the
                                                               0
 offender and how he is dealt with by the State.
 Criminal Justice came to comprehend all about
 crime, the criminal, the way he is dealt with, the
 process of proving his guilt and the ultimate
 punishment given to him. The civil law was supposed           E
 to take care of the monetary and other losses
 suffered by the victim. Victims were marginalized and
 the state stood forth as the victim to prosecute and
 punish the accused.
6. 7.2 What happens to the right of victim to get justice F
to the harm suffered? Well, he can be satisfied ifthe
state successfully gets the criminal punished to
death, a prison sentence or fine. How does he get
justice if the State does not succeed in so doing?
 Can he ask the State to compensate him for the G
injury? In principle, that should be the logical
 consequence in such a situation; but the State which
makes the law absolves itself.

                                                               H
788   SUPREME COURT REPORTS                  [2014) 13 S.C.R.


A      6.8.1 The principle of compensating victims of crime
       has for long been recognized by the law though it is
       recognized more as a token relief rather than part of
       a punishment or substantial remedy. When the
       sentence of fine is imposed as the sole punishment
 B     or an additional punishment, the whole or part-of it
       may be directed to be paid to the person having
       suffered loss or injury as per the discretion of the Court
       (Section 357 Cr.PC). Compensation can be awarded
       only if the offender has been convicted of the offence
 c     with which he is charged.
                     xx    xx     xx    xx    xx
       6.8.7 Sympathizing with the plight of victims under
       Criminal Justice administration and taking
 D     advantage of the obligation to do complete justice
       under the Indian Constitution in defense of human
       rights, the Supreme Court and High Courts in India
       have of late evolved the practice of awarding
       compensatory remedies not only in terms of money
 E     but also in terms of other appropriate reliefs and
       remedies. Medical justice for the Bhagalpur blinded
       victims, rehabilitative justice to the communal
       violence victims and compensatory justice to the
       Union Carbide victims are examples of this liberal
 F
       package of reliefs and remedies forged by the apex
       Court. The recent decisions in Nilabati Behera V.
       State ofOrissa (1993 2 SCC 746) and in Chairman,
       Railway Board V. Chandrima Das are illustrative of
       this new trend of using Constitutional jurisdiction to
 G
       do justice to victims of crime. Substantial monetary
       compensations have been awarded against the
       instrumentalities of the state for failure to protect the
       rights of the victim.
 H
      SU RESH v. STATE OF HARYANA                           789
        [ADARSH KUMAR GOEL, J.]

  6.8.8 These decisions have clearly acknowledged A
  the need for compensating victims of violent crimes
  irrespective of the fact whether offenders are
  apprehended or punished. The principle invoked is
  the obligation of the state to protect basic rights and
  to deliver justice to victims of crimes fairly and        B
  quickly. It is time that the Criminal Justice System
  takes note of these principles of Indian Constitution
  and legislate on the subject suitably.""
10.      In Re: State of Assam & 2 Others (PIL (Suo         c
Motu) No. 2612013) vide judgement dated 24.4.2013,
a Division Bench of Gauhati High Court observed :
  "We have heard learned counsel for the parties on
  the issue whether in absence of any prohibition under
  the scheme, interim compensation ought to be paid D
  at the earliest to the victim irrespective of stage of
  enquiry or trial, either on application of the victim or
  suo motu by the Court.
  In Savitri v. Govind Singh Rawat, (1985) 4 SCC            E
  337, question of interim maintenance under Section
  125 Cr.PC. was considered and it was observed:
  "3. It is true that there is no express provision in the
  Code which authorises a Magistrate to make an
  interim order directing payment of maintenance F
  pending disposal of an application for maintenance.
  The Code does not also expressly prohibit the
  making of such an order. The question is whether
  such a power can be implied to be vested in a
  Magistrate having regard to the nature of the G
  proceedings under Section 125 and other cognate
  provisions found in Chapter IX of the Code which is
  entitled "Order For Maintenance of Wives, Children
  and Parents". Section 125 of the Code confers power H
790   SUPREME COURT REPORTS                  [2014] .13 S.C.R.

A      on a Magistrate of the first class to direct a person
       having sufficient means but who neglects or refuses
       to maintain (i) his wife, unable to maintain herself, or
       (ii) his legitimate or illegitimate minor child, whether
       married or not, unable to maintain itself, or (iii) his
B      legitimate or illegitimate child (not being a married
       daughter) who has attained majority, where such child
       is, by reason of any physical or mental abnormality
       or injury unable to maintain itself or (iv) his father or
       mother, unable to maintain himself or herself, upon
c      proof of such neglect or refusal, to pay a monthly
       allowance for the maintenance of his wife or such
       child, father or mother, as the case may be, at such
       monthly rate not exceeding five hundred r~pees in
       the whole as such Magistrate thinks fit. Such
D
       allowance shall be payable from the date of the order,
       or, if so ordered from the date of the application for
       maintenance. Section 126 of the Code prescribes
       the procedure for the disposal of an application made
       under Section 125. Section 127 of the Code provides
E
       for alteration of the rate of maintenance in the light
       of the changed circumstances or an order or decree
       of a competent civil court. Section 128 of the Code
       deals with the enforcement of the order of
 F     maintenance. It is not necessary·to refer to the other
       details contained in the above-said provisions.
       6. In view of the fQregoing it is the duty of the court to
       interpret the provisions in Chapter IX of the Code in
       such a way that the construction placed on them
G      would not defeat the very object of the legislation. In
       the absence of any express prohibition, it is
       appropriate to construe the provisions in Chapter IX


H
   · SURESH v. STATE OF HARYANA                         791
       [ADARSH KUMAR GOEL, J.]

as conferring an implied power on the Magistrate to A
direct the person against whom an application is
made under Section 125 of the Code to pay some
reasonable sum by way of maintenance to the
applicant pending final disposal of the application. It
is quite common that applications made under B
Section 125 of the Code also take several months
for being disposed of finally In order to enjoy the fruits
of the proceedings under Section 125, the applicant
should be alive till the - 17 -date of the final order
and that the applicant can do in a large number of C
cases only if an order for payment of interim
maintenance is passed by the court. Every court
must be deemed to possess by necessary
intendment all such powers as are necessary to make D
its orders effective. This principle is embodied in the
maxim "ubi aliquid conceditur, conceditur et id sine
quo res ipsa esse non potest" (Where anything is
conceded, there- is conceded also anything without
which the thing itself cannot exist). [Vide Earl Jowitt's E
Dictionary of English Law, 1959 Edn., p. 1797.]
Whenever anything is required to be done by law and
it is found impossible to do that thing unless
something not authorised in express terms be also
done then that something else will be supplied by F
necessary intendment. Such a construction though
it may not always be admissible in the present case
however would advance the object of the legislation
under consideration. A contrary view is likely to result
in grave hardship to the applicant, who may have no · G
means to subsist until the final order is passed. There
is no room for the apprehension that the recognition
of such implied power would lead to the passing of
interim orders in a large number of cases where the
                                                         H
792   SUPREME COURT REPORTS                [2014] 13 S.C.R.


A·     liability to pay maintenance may not exist. It is quite
       possible that such contingency may arise in a few
       cases but the prejudice caused thereby to the person
       against whom it is made is minimal as it can be set
       right quickly after hearing both the parties. The
 B     Magistrate may, however, insist upon an affidavit
       being filed by or on behalf of the applicant concerned
       stating the grounds in support of the claim for interim
       maintenance to satisfy himself that there is a prima
       facie case for making such an order. Such an order
 c      may also be made in an appropriate case ex parte
       pending service of notice of the application subject
        to any modification or even an order of cancellation
        that may be passed after the respondent is heard. If
        a civil court can pass such interim orders on
 D
        affidavits, there is no reason why a Magistrate should
        not rely on them for the purpose of issuing directions
        regarding payment of interim maintenance. The
        affidavit may be treated as supplying prima facie
        proof of the case of the applicant. If the allegations
 E
        in the application or the affidavit are not true, it is
        always open to the person against whom such an
        order is made to show that the order is unsustainable.
        Having regard to the nature of the jurisdiction
 F      exercised by a Magistrate under Section 125 of the.
        Code, we feel that the said provision should be
        interpreted as conferring power by necessary
        implication on the Magistrate to pass an order
        directing a person against whom an application is
 G      made under it to pay a reasonable sum by way of
        interim maintenance subject to the other conditions
         referred to therein pending final disposal of the
         application. In taking this view we have also taken
         note of the provisions of Section 7(2)(a) of the Family
 H
              SU RESH v. STATE OF HARYANA                         793
                [ADARSH KUMAR GOEL, J.]

        Courts Act, 1984 (Act 66of1984) passed recently A
        by Parliament proposing to transfer the jurisdiction
        exercisable by Magistrates under Section 125 of the
        Code ta the Family Courts constituted under the said
        Act."
                                                                   B
        Above view has been reiterated, inter alia, in Shai/
        Kumari Devi v. Krishan Bhagwan Pathak, (2008)9
        sec 632.
        We are of the view that above observations support
        the submission that interim compen·sation ought to C
        be paid at the earliest so that immediate .need of
        victim can be met. For determining the amount of
        interim compensation, the Court may have regard
        to the facts and circumstances of individual cases
        including the nature of offence, loss suffered and the D
        requirement of the victim. On an interim order being
        passed by the Court, the funds available with the
        District/State Legal SeNices Authorities may be
        disbursed to the victims in the manner directed by
        the Court, to be adjusted later in appropriate E
        proceedings. If the funds already allotted get
        exhausted, the State may place further funds at the
        disposal of the Legal Services Authorities."
     13. We are informed that 25 out of 29 State Governments       F
have notified victim compensation schemes. The schemes
specify maximum limit of compensation and subject to
maximum limit, the discretion to decide the quantum has been
left with the State/District legal authorities. It has been brought
to our notice that even though almost a period of five years G
has expired since the enactment of Section 357 A, the award
of compensation has not become a rule and interim
compensation, which is very important, is not being granted
by the Courts. It has also been pointed out that the upper limit
                                                                    H
794       ·SUPREME COURT REPORTS                    [2014] 13 S.C.R.


A of compensation fixed by some of the States is arbitrarily low
  and is not in keeping with the object of the legislation.
           14. We are of the view that it is the duty of the Courts, on
   taking cognizance of a criminal offence, to ascertain whether
 B there is tangible material to show commission of crime, whether
   the victim is identifiable and whether the victim of crime needs
   immediate financial relief. On being satisfied on an application
   or on its own motion, the Court ought to direct grant of interim
   compensation, subject to final compensation being determined
 c later. Such duty continues at every stage of a criminal ca~e
   where compensation ought to be given and has not been given,
   irrespective of the application by the victim. At the stage of
   final hearing it is obligatory on the part of the Court to advert to
   the provision and record a finding whether a case for grant of
 o compensation has been made out and, if so, who is entitled to
   compensation and how much. Award of such compensation
    can be interim. Gravity of offence and need of vic!im are some
    of the guiding factors to be kept in mind, apart from such other
    factors as may be found relevant in the facts and circumstances
 E of an individual case. We are also of the view that there is
    need to consider upward revision in the scale for compensation
    and pending such consideration to adopt the scale notified by
    the State of Kerala in its scheme, unless the scale awarded by
    any other State or Union Territory is higher. The States of
 F Andhra Pradesh, Madhya Pradesh, Meghalaya andTelangana
    are directed to notify their schemes within one month from
     receipt of a copy of this order. We also direct that a copy of
     this judgment be forwarded to National Judicial Academy so
     that all judicial officers in the country can be imparted requisite
 G training to make the provision operative and meaningful.
            15. In the present case, the impugned judgment shows
      that the de facto complainant, PW-2 Raman Anand, filed
      Criminal Revision No.1477 of 2004 for compensation to the
 H
               SURESH v. STATE OF HARYANA                            795
                 [ADARSH KUMAR GOEL, J.]
                                           -
family members of deceased Devender Chopra and his son A
Abhishek Chopra. The same has been dismissed by the High
Court without any reason. In fact even without such petition,
the High Court ought to have awarded compensation. There
is no reason as to why the victim family should not be awarded
compensation under Section 357-A by the State. Thus, we B
are of the view that the State of Haryana is liable to pay
compensation to the family of the deceased. We determine
the interim compensation payable for the two deaths to be
rupees ten lacs, without prejudice to any other rights or
remedies of the victim family in any other proceedings.        C
       16. Accordingly, while dismissing the appeal, we direct
that the widow of Devender Chopra, who is mother of deceased
Abhishek Chopra representing the family of the victim be paid
interim compensation of rupees ten lacs. It will be payable by o
the Haryana State Legal Services Authority within one month
from receipt of a copy of this order. If the funds are not available
for the purpose with the said authority, the State of Haryana
will make such funds available within one month from the date
of receipt of a copy of this judgment and the Legal Services E
Authority will disburse the compensation within one month
thereafter.
      The appeal stands disposed of accordingly.
                                                                     F
Kalpana K. Tripathy                            Appeal disposed of.