The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 1966 of 2023 An application under Section 482 of the Code of Criminal Procedure, 1973. Sasmita Barik ..…. Petitioner -versus- 1.State of Odisha 2.District Legal Service Authority, Puri …… Opp. Parties ------------------------------------------------------------------------- For Petitioner Mr.A.U.Senapati, Advocate : For Opp. Parties ------------------------------------------------------------------------- Mr.D.Nayak, AGA : CORAM: HONOURABLE MISS JUSTICE SAVITRI RATHO JUDGMENT 04th May, 2023 Savitri Ratho, J. This application under section 482 of the Code of Criminal Procedure (in short “Cr.P.C.” has been filed by the petitioner for a direction to the learned District Legal Service Authority, Puri - opposite party No.2 to disburse compensation along with interest under the Odisha Victim Compensation Scheme 2012 (in short “the Scheme”) in her favour in the light of the judgment dated 28.03.2019 passed by the learned Addl. Sessions Judge, Nimapara in S.T. Case No. 12/149 of 2016/12. CRLMC No.1966 of 2023 Page 1 of 12 //2//
Legal Reasoning
2. Mr. A.U.Senapati, learned counsel for the petitioner submits that the petitioner is the wife of late Narendra Kumar Barik who had been killed by one Pratap Chandra Barik leading to registration of Astaranga P.S. Case No. 72 of 2010 corresponding to G.R. Case No. 578 of 2010 in the file of the J.M.F.C., Nimapara. This case was tried as S.T. Case No. 12/149 of 2016/12 by the learned Addl. Sessions Judge, Nimapara and vide judgment dated 28.03.2019, the accused was convicted for commission of the offence under Section 304 (II) of the IPC and keeping in view the advanced age of the accused who was suffering from various diseases, he was sentenced to undergo R.I. for three years and to pay a fine of Rs.20,000/- and in default, to undergo R.I. for six months and he was acquitted him of the offence under Sections 25/27 of the Arms Act. The learned trial court further directed to send a copy of the judgment to the District Legal Service Authority, Puri for payment of compensation of Rs.2,00,000/- (Rupees Two Lakhs only ) under the Odisha Victim Compensation Scheme to the petitioner who is the widow of the deceased. But till date, the compensation has not been paid to her. 3. Mr. Senapati, learned counsel further submits that challenging the said order the petitioner had filed Criminal Appeal No. 288 of 2019 praying for enhancement of the conviction and sentence of the accused and the accused CRLMC No.1966 of 2023 Page 2 of 12 //3// has also preferred Criminal Appeal No. 205 of 2019 challenging his conviction and sentence. During pendency of these two appeals, the accused Pratap Chandra Barik expired for which his appeal abated and the appeal of the present petitioner was also dismissed on 13.12.2022. In spite of the disposal of these two appeals and inspite of the direction for payment of compensation not having been challenged, the compensation has not been paid to the petitioner . 4. Mr. D Nayak learned Additional Government submits that the petitioner can only be paid compensation if she is found eligible for payment under the Scheme, which was published in the gazette on 25th July 2012. As the occurrence took place on 3.09.2010 which was before the Scheme came into force, the opposite party No.2 may be directed to take a decision regarding her eligibility for payment in accordance with the Scheme. 5. Perusal of the judgment and order dated 28.03.2019 passed by the learned Addl. Sessions Judge Nimapara In S.T. Case No.12/149 of 2016/2012, reveals that while convicting the accused for commission of offence punishable under Section 304-II of the IPC and sentencing him to undergo R.I for three years and to pay a fine of Rs.20,000/- (Rupees twenty thousand) and in default of the said fine to undergo R.I for six months, the CRLMC No.1966 of 2023 Page 3 of 12 //4// learned trial also directed that the copy of the judgment be sent to D.L.S.A Puri for payment of compensation of Rs.2,00,000/- (Rupees two lakhs only ) under Orissa Victim Compensation Scheme to the widow of deceased namely Sasmita Barik (the present petitioner). 6. The following order has been passed by this Court on 13.12.2022 in CRLA No.288 of 2019 (Annexure-2 to this application) filed by the petitioner : “Order No. 5. 1. This matter is taken up through hybrid arrangement (virtual/physical) mode. 2. In view of dismissal of the connected Appeal filed by the convict, i.e. CRLA No. 205 of 2019; the present Appeal is taken out of the Board and is dismissed as such.” 7. Section 357 and Section 357 A of the Cr.P.C. deal with payment of compensation. Section 357 deals with power to the trial Court to direct for payment of fine or compensation by the accused, Section 357 A which was introduced into the Cr.P.C by way of amendment which came into effect on 31.12.2009, provides that every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered CRLMC No.1966 of 2023 Page 4 of 12 //5// loss or injury as a result of the crime and who require rehabilitation and that whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1), after due enquiry award adequate compensation by completing the enquiry within two months. The two provisions are extracted below : 357. Order to pay compensation.—(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied— (a) in defraying the expenses of properly incurred in the prosecution; (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court; (c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death; (d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted CRLMC No.1966 of 2023 Page 5 of 12 //6// in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. (2) If the fine is imposed in a case which is subject to appeal no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced. (4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision. (5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section. 357A. Victim compensation scheme.—(1) Every State Government in co- ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation. (2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, CRLMC No.1966 of 2023 Page 6 of 12 //7// as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1). (3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation. (4) Where the offender is not traced or identified, but 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. (5) On receipt of such recommendations or on the application under sub- section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months. (6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit. 8. The Orissa Victim Compensation Scheme 2012 (in short “the Scheme”) has been made by the State Government, in pursuance of Section 357 A of the Code of Criminal Procedure, in coordination with the Central Government for providing funds for the purpose of compensation to the CRLMC No.1966 of 2023 Page 7 of 12 //8// victim who has suffered loss or injuries as the result of crime and require rehabilitation. Clause 2 (g), Clause 7, and Clause-9 of the Scheme which are relevant are extracted below : 2 (g) “Victim means a person who himself/herself suffered loss or injury as a result of crime and requires rehabilitation and in case of his/her death also his/her dependents. Provided where the victim is a minor, his/her parents would be dependants in case they are found to have been affected by the crime or in case the perpetration of crime has left a scar on their dependent family members. 7. Eligibility for compensation: The victim satisfying the following criteria shall be eligible for compensation. (a) He / She has not been compensated for the loss or injury under any other scheme of the Central or the State Government or Insurance Company or any other institution. The victim shall inform to the authority the details of claims for compensation made under any other scheme or from any other source. The victim will be free to choose another scheme of Government, if the same is more beneficial to him or her. He / She cannot claim both, or part benefit from one scheme and part from another. (b) Loss or injury sustained by the victim have caused substantial loss to the income of the family making it difficult to live as before without the financial aid or has affected his/her dignity or personality or the medical treatment of mental/physical injury should have caused financial stress for the family. CRLMC No.1966 of 2023 Page 8 of 12 //9// (c) The victim shall co-operate with the police and prosecution from the stage of investigation till conclusion of trial of the case. 9. Procedure for grant of compensation:- (a) Whenever a recommendation is made by the Court or an application is made by any victim under Sub-Section (4) of Section 357-A of the Code to the District Legal Service Authority, the District Legal Service Authority shall examine the case and verify the contents of the claim with regard to the loss or injury caused to victim and arising out of the reported criminal activity and may call for any other relevant information necessary in order to determine genuineness. After verifying the claim, the District Legal Service Authority shall after due enquiry award compensation within two months from the date of recommendation of the court or application received from the victim subject to the provisions contained hereinafter. (b) Compensation under this Scheme shall be paid subject to the condition that if the trial Court while passing judgment at later date, orders the accused persons to pay any amount by way of compensation under Sub-Section (3) of Section 357 of the Act, the victim shall remit an amount ordered equal to the amount of compensation, or the amount ordered to be paid under the said subsection (3) of Section 357 of the Act, whichever is less. An undertaking to this effect shall be given by the victim before the disbursal of the compensation amount. (c) The District Legal Service Authority shall decide the quantum of compensation to be awarded to the victim on the basis of loss caused to the victim, medical expenses to be incurred on treatment, minimum sustenance amount required for rehabilitation including such incidental CRLMC No.1966 of 2023 Page 9 of 12 //10// charges as funeral expenses etc. In case of grant of compensation less than the maximum fixed for the reasons to be recorded in writing. (d) The quantum of compensation to be awarded under the scheme shall be disbursed to the victim or his dependents, as the case may be, from the Fund. The quantum of compensation to be awarded to a victim under this scheme shall not exceed the maximum limit as specified in the Schedule. (e) Compensation received by the victim from the State in relation to the crime in question, namely, insurance, ex gratia and/or payment received under any other Act or State run scheme or Central run scheme, shall be considered as part of the compensation amount under the scheme and if the compensation amount as decided by the District Legal Services Authority exceeds the payments received by the victim from the sources mentioned above, the balance amount shall be paid out of the Fund. (f) The victims of cases covered under the Motor Vehicle Act, 1988 (59 of 1988) wherein compensation is awarded by the Motor Accident Claims Tribunal or under the provisions of the Code, shall not be covered under the Scheme. (g) The cases Covered under S.C. & S.T. (POA) Act and P.C.R. Act, 1955 shall not be covered under the Scheme. (h) The compensation awarded shall be paid in two phases, first half being within any time before commencement of trial and the rest half on conclusion of trial subject to the satisfaction to be recorded in writing by the District Legal Services Authority basing upon the opinion of the public prosecutor concerned that the victim cooperated with the prosecution during trial. CRLMC No.1966 of 2023 Page 10 of 12 //11// (i) The District Legal Services Authority, to alleviate the suffering of the victim may order for immediate first aid facility of medical benefits to be made available free of cost on the certificate of the officer-in-charge of the police station or Magistrate of the area concerned, or any other interim relief as it may deem fit. (j) The payment of Compensation from the Fund will be made by Account Payee Cheque or electronic money transfer to the Account of the payee. (k) Any compensation awarded by the order of Special Court under Sub- Section (8) of Section 33 of the Protection of Children from Sexual Offence Act, 2013 shall be paid from the fund under this scheme.” 9. The petitioner who comes within the definition of “victim” under Clause 2 (g) of the Scheme is eligible to get compensation. In view of the direction of the trial court for payment of compensation, which has not been set aside, The District Legal Services Authority, Puri should take steps for payment of the compensation to the petitioner after conducting enquiry in accordance with the scheme, within a period of two months from receipt of a certified copy of this order. The opposite party No.2 shall also consider if the petitioner is entitled to payment of interest on the amount of compensation, as the learned trial court had directed for payment of compensation more than four years back, by
Decision
order dated 28.03.2019. 10. The CRLMC is accordingly disposed of directing the opposite party CRLMC No.1966 of 2023 Page 11 of 12 //12// No.2, District Legal Services Authority, Puri to make payment of the compensation to the petitioner in accordance with the Scheme within a period of two months from the date of receipt of this order and a copy of the judgment passed in S.T. Case No. 12/149 of 2016/12, which shall be furnished/submitted by the petitioner. 11. Urgent certified copy of this order be granted on proper application. 12. A copy of the order be sent to the Secretary District Legal Service Authority, Puri by the Registry. ……………………… (Savitri Ratho, J.) Orissa High Court, Cuttack. The 04th day of May, 2023. S.K. Behera, Senior Stenographer. Signature Not Verified Digitally Signed Signed by: SUKANTA KUMAR BEHERA Designation: Senior Stenographer Reason: Authentication Location: Orissa High Court, Cuttack Date: 31-May-2023 19:10:17 CRLMC No.1966 of 2023 Page 12 of 12