General Principles Of Sections 357 & 357A CrPC Are Still Applicable To Provisions Of POCSO Act Unless There Is Inconsistent Provision: Patna HC
The Patna High Court remarked that the general principles of Sections 357 and 357A of the Criminal Procedure Code (CrPC) are still applicable to the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) regarding the compensation unless there is inconsistent provision under the POCSO Act.
The Court remarked thus in an appeal preferred against the judgment of conviction by which the accused was convicted for the offences punishable under Section 376 of the Indian Penal Code (IPC) and Section 4(2) of POCSO Act.
A Division Bench of Justice Ashutosh Kumar and Justice Jitendra Kumar said, “We are also of the view that the provisions regarding compensation to victims under the POCSO Act are supplementary to Section 357 and 357A Cr.PC. Hence, general principles of Section 357 and 357A Cr.PC are still applicable to the provisions of POCSO Act in regard to compensation to the extent there is no inconsistent provisions under the POCSO Act in regard to compensation. It is also pertinent to mention that Section 357 Cr.PC has been modified by the provisions of POCSO Act by providing for payment of the fine imposed on the Convict to the victim.”
The Bench added that the Special Court has no option but to direct payment of the fine imposed upon the convict as part of the sentence to the victim and the fine imposed is also a factor to be considered by the Special Court while deciding the quantum of compensation payable to the victim under the provisions of the POCSO Act.
Advocate Ajay Kumar Thakur represented the appellant/accused while APP Binod Bihari Singh represented the respondent/State.
Facts of the Case -
An FIR was lodged against the appellant/accused for the offence punishable under Section 376 of IPC and Section 8 of POCSO Act on the written report of the victim in the year 2018. The prosecution case was that the victim was born on April 14, 2000 and she took examination of Matriculation in March 2015. Thereafter, she started living with her uncle and aunt since 2015 at Buxar. It was alleged that since then, the accused started misbehaving with the victim and on the false promise to marry, he established physical relationship with her. When she asked to marry, he refused and promised that he would marry only on her becoming a major.
However, the accused reneged from his promise and none the less, the affair continued for three years. He had given her mobile phones twice for talking to him and established physical relationship with her several times by taking her to a hotel. Afterwards, in 2018, he clearly refused to marry her under any condition. Hence, the case was registered against him and the Special Judge, POCSO Court-cum-Additional Sessions Judge convicted him and sentenced him to undergo rigorous imprisonment for 20 years along with a fine of Rs. 25,000/-. Being aggrieved, the accused challenged his conviction before the High Court.
The High Court in view of the above facts observed, “If we read Section 33(8) of the POCSO Act and Rule 9 of the POCSO Rules, 2020, we find that procedure for payment of compensation to victims under the POCSO Act is somewhat different from that as provided under Bihar Victim Compensation Scheme, 2014. Under the Bihar Victim Compensation Scheme, 2014, the Legal Services Authorities make payment to the victims on recommendation by the Court and the quantum of compensation is decided by the Legal Services Authorities as per the Victim Compensation Scheme. However, as per provisions of Section 33(8) and Rule 9 of the POCSO Rules, 2020 read with observation of Hon’ble Supreme Court in Nipun Saxena case (supra), it is the Special Court which determines the quantum of compensation, whether interim or final, as per the provisions of Section 33(8) and Rule 9 of POCSO Rules, 2020 seeking guidance from the Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes-2018 as prepared by NALSA”
The Court further emphasised that it is mandatory duty of the Special Court to give finding at the conclusion of the trial regarding the victim of the crime, clearly stating who is the victim of the crime, irrespective of the fact that the accused has been discharged or trial has resulted into acquittal or conviction of the accused.
“If someone is found to be victim of the crime, the Special Court is duty bound to direct payment of compensation to the victim, either by way of fine or if fine is insufficient, then by way of direction to the Legal Services Authority to pay compensation, specifying the quantum of compensation and thereafter the Legal Services Authorities are duty bound to disburse this amount to the victim within 30 days of the receipt of the order. The stipulation of time for payment of the compensation is clearly provided in Rule 9(5) of the POCSO Rules, 2020”, it enunciated.
The Court noted that as per Rule 9(2) of POCSO Rules, 2020, the Special Courts are empowered to award compensation to the victim not only on application filed on behalf of the victim, but even on its own, if they are satisfied that there is victim and he/she deserves compensation.
“Even the Appellate Court is also duty bound to pass order regarding compensation to the victim, because appeal proceedings are also continuation of trial proceedings. Similar view has been taken by Karnataka High Court in State of Karnataka Vs. Rangaswamy, 2015 SCC OnLine Kar 8587”, it also said.
The Court observed that in the case, the victim is undoubtedly a victim of sexual assault by the appellant and she would not only suffer from social stigma, but she would have diminished prospect of marriage in our social milieu. It added by saying that she deserves monetary support for rehabilitation in society.
“We also find that no interim compensation has been given to the victim during trial. … Hence, seeking guidance from the part-II of the Bihar Victim Compensation Scheme, 2014 in regard to quantum of compensation, we direct the Bihar Legal Services Authority to make payment of Rs. 2,00,000/- (Rupees two lakh) within 30 days of receipt of this order”, it directed.
Accordingly, the High Court directed the payment of compensation to the victim.
Cause Title- Satyabrat Ashok @ Satya Vrat Ashok @ Pappu Sharma @ Pappu v. The State of Bihar
Appearance:
Appellant: Advocates Ajay Kumar Thakur, Kiran Kumari, Vaishnavi Singh, Imteyaz Ahmad, Ritwik Thakur, and Ritwaj Raman.
Respondent: APP Binod Bihari Singh