NALSA Scheme 2018 Shall Act As Guideline To Award Compensation To Victims Of Sexual Offences Under POCSO Till Amendment Of KVC Scheme 2017: Kerala HC

Referring to the directions of the Apex Court in the case of Nipun Saxena v Union of India [2017 SCC OnLine SC 1776] and Abhishek v State of Kerela [(2020) 5 KLT 276], the Kerala High Court directed the State Government to either formulate a comprehensive victim compensation scheme for sexual offences under the POCSO Act or amend the existing Kerala Victim Compensation Scheme, 2017 (as amended in 2021) to include a separate Schedule for POCSO Act victims.

Till then, the NALSA Scheme, 2018 shall act as a guideline to the Special Court to award compensation to child victims of sexual offences under POCSO Act, added the Court.

The Single Judge Bench of Justice Kauser Edappagath observed that “it is obligatory on the part of the State Government to formulate a comprehensive victim compensation scheme specifically for the victims of sexual offences under the POCSO Act or to make necessary amendments in the existing Kerala Victim Compensation Scheme, 2017 (As amended in 2021) incorporating a separate Schedule applicable to sexual offence victims under the POCSO Act. The State Government shall take necessary steps in this regard Forthwith”.

Advocate Roshen D. Alexander appeared for the Petitioner, whereas Advocate P. Narayanan appeared for the Respondent.

The brief facts of the case were that the Special Court for Trial of Offences Relating to Atrocities Against Women and Children, including POCSO Cases, issued two orders instructing the District Legal Services Authority, Alappuzha, to grant interim compensation of Rs.50,000/- to victims in cases SC Nos. 848/2016 and 849/2016. The cases involved offences under Section 11 read with Section 12 of the POCSO Act and the IPC. The petitioners, Kerala Legal Services Authority and District Legal Services Authority, Alappuzha, challenged the orders, arguing that since 'sexual harassment' is not listed as an injury in the Schedule of the Kerala Victim Compensation Scheme, 2017, the victims are ineligible for compensation.

After considering the submission, the Bench found from the reading of Section 33(8) of the POCSO Act and Rule 9 (1), (2) of the POCSO Rules 2020, that the Special Court is competent to award either interim compensation or final compensation or both for meeting the immediate relief and rehabilitation needs of the child either on its own or an application filed by or on behalf of the child.

“The said compensation shall be payable by the State Government through Schemes or Funds established for such purpose. The provisions regarding the compensation under the POCSO Act and Rules are based on Section 357A of CrPC, with suitable changes, to ensure immediate and speedy relief to the child”, added the Bench.

While stating that Section 357A of CrPC is a beneficial provision introduced for the benefit of the victim of a crime, and the Kerala Victim Compensation Scheme framed by the State of Kerala is also a beneficial scheme for the victim, the Bench elucidated that the object and purpose of Section 357A as well as the Victim Compensation Scheme, therefore, conceives a scheme of protective measure with the object to protect victims of crimes.

The Bench highlighted that when the welfare statute is made with the single focus of the benefit of victims, such an Act must be treated as remedial to protect the victims.

“While interpreting a provision brought in as a remedial measure, that too, as a means of welfare for the victims of crimes, the court must always interpret the words in such a manner that the relief contemplated by the provision is secured and not denied to the class intended to be benefitted. Hence, Section 357A of CrPC, as well as the Kerala Victim Compensation Scheme introduced as per that provision, requires a liberal interpretation in the victim's favour if any ambiguity prevails”, added the Bench.

The High Court observed that the duty of the Special Court is not only the protection of children from sexual offences and to convict the accused where the accused is found guilty, but also to grant compensation in terms of Section 33(8) of the POCSO Act in addition to the punishment as may be prescribed to the child for any physical or mental trauma caused to it or for immediate rehabilitation of such child.

Highlighting that when Section 357A of CrPC, Section 33(8) of the POCSO Act or Rule 9 of the POCSO Rules does not contemplate that ‘sexual assault victims’ alone are eligible for compensation, the High Court stated that a Scheme formulated in the exercise of the power conferred by such statutory provisions cannot impose a restriction that a particular class of victims alone are entitled to victim compensation.

Accordingly, while clarifying that a beneficial legislation/scheme cannot distinguish between victims of crimes, the High Court concluded that until a comprehensive scheme is framed, the NALSA Scheme, 2018 will serve as a guideline for compensation to child victims of sexual offences under the POCSO Act.

Cause Title: Kerala State Legal Services Authority and Anr. v. State of Kerala and Anr.

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