Delhi High Court (FB) Mandates Filing Of Convict’s Income Affidavit And Victim Impact Report

Delhi High Court (FB) Mandates Filing Of Convict’s Income Affidavit And Victim Impact Report To Determine Compensation Under Section 357 Of The Code Of Criminal Procedure

Synopsis

In a significant development the Honorable High Court of Delhi has issued directions to be followed with regard to determination of compensation under section 357 of the Criminal Procedure Code. This article would be discussing in detail the directions of the court and background which led to the order.

MATTER IN ISSUE

On 15th June 2017, Karan and Sunny (appellants) and MB (a juvenile in conflict with law) dragged Gulfam out of his house. Appellants held Gulfam while MB stabbed him in his back with a (chhuri)knife thereby causing fatal injuries.FIR was lodged and the appellantsconsequently faced trial u/s. 302 r/w s. 34 of IPC before Chief Judicial Magistrate. Eventually, on 25thAugust 2020, the matter was placed before the three judge Bench of the Delhi High Court under the title Karan vs. State (NCT of Delhi). The Full Bench comprised of Justices JR Midha, Rajnish Bhatnagar and Brijesh Sethi.

SUBMISSIONS BY THE BAR MEMBERS

The Delhi HC vide Order dated 25/08/2020, permitted the appellants to withdraw the objections to jurisdiction of ld. Additional Sessions Judge and bail applications were dismissed on ground of being infructuous. The appeals however remained pending as the court decided to consider the legal issues raised by the HC. Mr. Kanhaiya Singal – ld. Counsel for the appellant, Mr. Rajshekhar Rao – ld. Counsel for the HC, Mr. Rahul Mehra – ld. Standing Counsel and Mr. vikas Pahwa – ld. Amicus Curiae submitted that there is a need to frame guidelines for awarding compensation u/s.357 of CrPC. Prof. G. S. Bajpai –professor of Criminology and Criminal Justice, NLU Delhi, who has done extensive research on victimology was appointed Amicus Curiae to assist framing of guidelines.

ORDER OF THE COURT

The Bench stated that the Court has to take into consideration the effect of the offence on the victim's family even though human life cannot be restored but then monetary compensation will at least provide some solace.Section 357(3) of CrPC is a mandatory provision and the word ‘may' is to be construed as ‘shall'.

Section 357 states –

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.

The Court has further ordered that in pending appeals/revisions in which Section 357 CrPC for payment of compensation has not been complied with, the Public Prosecutor shall file an application for the compliance of the procedure laid down by it. The court held that the High Court has both judicial and administrative power to regulate administration of justice, as well as the appointment, posting, promotion and transfer of the judicial officers. The matter is listed for recording compliance and further directions by 25th February, 2021. To ensure compliance of its order, the Court has directed that a monthly statement shall be sent by the trial courts to the Registrar General, Delhi High Court.

DIRECTIONS ISSUED BY THE COURT

• After the conviction of the accused, the Trial Court shall direct the accused to file the affidavit of his assets and income within 10 days.

• After the conviction of the accused, the Court shall also direct the State to disclose the expenses incurred on prosecution on affidavit along with the supporting documents within 30 days.

• Upon receipt of the affidavit of the accused, the Trial Court shall immediately send the copy of the judgment and the affidavit of the accused and the documents filed with the affidavit to DSLSA.

• Upon receipt of the judgment and the affidavit of the accused, DSLSA shall conduct a summary inquiry to compute the loss suffered by the victims and the paying capacity of the accused and shall submit the Victim Impact Report containing their recommendations to the Court within 30 days. (Format of both could be found in the judgment annexures)

• Delhi State Legal Services Authority shall seek the necessary assistance in conducting the inquiry from SDM concerned, SHO concerned and/or prosecution who shall provide the necessary assistance upon being requested.

• The Trial Court shall thereafter consider the Victim Impact Report of the DSLSA with respect to the impact of crime on the victims, paying capacity of the accused and expenditure incurred on the prosecution; and after hearing the parties including the victims of crime, the Court shall award the compensation to the victim(s) and cost of prosecution to the State, if the accused has the capacity to pay the same.

• The Court shall direct the accused to deposit the compensation with DSLSA whereupon DSLSA shall disburse the amount to the victims according to their Scheme.

• The Registrar General of this Court shall place these reports before ACR Committee of the Judicial Officers.

• If the accused does not have the capacity to pay the compensation or the compensation awarded against the accused is not adequate for rehabilitation of the victim, the Court shall invoke Section 357A CrPC to recommend the case to the Delhi State Legal Services Authority for award of compensation from the Victim Compensation Fund under the Delhi Victims Compensation Scheme, 2018.

• In pending appeals/revisions against the order on sentence in which Section 357 CrPC has not been complied with, the Public Prosecutor shall file an application seeking a direction from the Court for directing the accused to file his affidavit of assets and income and directions to DSLSA to conduct a summary inquiry to ascertain the loss/damage suffered by the victim(s) and the paying capacity of the accused in terms of Sections 357(4) CrPC in accordance with procedure mentioned hereinabove.

• The first monthly report for the period 01 st January, 2021 to 31st January, 2021 be submitted by 15th February, 2021 and thereafter, by 15th of each English calendar month.

• All the Courts below shall send a monthly statement to the Registrar General of this Court containing the list of cases decided each month. The list shall contain the name and particulars of the case; date of conviction; whether affidavit of assets and income has been filed by the accused; whether summary inquiry has been conducted to assess the compensation and determine the paying capacity of the accused; and compensation amount awarded. The monthly statement shall also contain one page summary format of the above information.

• Delhi State Legal Services Authority is directed to prepare a proposal for additional manpower after examining number of summary inquiries that are likely to be conducted by DSLSA every month and the proposal be sent to Government of NCT of Delhi within one week whereupon Government of NCT of Delhi shall complete all necessary formalities within three weeks to ensure that the directions of this Court relating to the summary inquiry by DSLSA in every criminal case are implemented w.e.f. 01st January, 2021.

STEP BY STEP PROCEDURE DIRECTED BY THE COURT

1. Convicts shall file an affidavit disclosing their assets, income and expenditure. Along with the affidavit, the following documents are to be filed:

a. Aadhaar Card
b. Voter ID Card
c. PAN Card
d. Statement of Account of all bank accounts including current, savings,DEMAT for the last three years
e. Income Tax Return(s) of the deponent along with the balance sheets, statement of income and Annexures for last three years
f. Salary Slip in case of salaried persons

2. A Victim Impact Report (VIR) shall be filed by Delhi State Legal Services Authority (DSLSA) in every criminal case after a summary inquiry following the affidavit. Documents considered and required to be attached to the report:

I. In death cases:

a. Death certificate

b. Proof of age of the deceased which may be in form of

· Birth Certificate;
· School Certificate;
· Certificate from Gram Panchayat (in case of illiterate)
· Aadhaar Card

c. Proof of Occupation and Income of the deceased which may be in form of

· Pay slip/salary certificate (salaried employee);
· Bank statements of the last six months;
· Income tax Return;
· Balance Sheet

d. Proof of the legal representatives of the deceased (Names, Age,

e. Address, Phone Number & Relationship)

f. Treatment record, medical bills and other expenditure

g. Bank Account no. of the legal representatives of the deceased with

h. Name and address of the bank

i. Any other document found relevant

II. In injury cases:

a. Multi angle photographs of the injured

b. Proof of age of the deceased which may be in form of

• BirthCertificate;
• School Certificate;
• Certificate from Gram Panchayat (in case of illiterate);
• Aadhaar Card

c. Proof of Occupation and Income of the deceased which may be in form of

• Pay slip/salary certificate (salaried employee);
• Bank Statements of the last six months;
• Income tax Return;
• Balance Sheet

d. Treatment record, medical bills and other expenditure.

e. Disability certificate (if available)

f. Proof of absence from work where loss of income on account of injury is being claimed, which may be in the form of

• Certificate from the employer;
• Extracts from the attendance register.

g. Proof of reimbursement of medical expenses by employer or under aMediclaim policy, if taken

h. Any other document found relevant

3. The trial court concerned to consider the Victim Impact Report, the paying capacity of the accused, expenditure incurred on the prosecution and the submissions of the parties to award the compensation to the victim(s) as well as the cost of prosecution to the State.

4. The amount so decided shall directly be deposited by the convict with DSLSA,which will disburse it to the victims according to their scheme.

5. If the accused does not have the capacity to pay the compensation or the compensation awarded against the accused is not adequate, the DSLSA shall award compensation under Section 357A CrPC, from the Victim Compensation Fund under the Delhi Victims Compensation Scheme, 2018.

CONCLUSION

The Hon'ble Delhi High Court has rightly emphasized the need for stricter implementation of section 357 of CrPC for providing compensation to victims compulsorily and based on thorough analysis rather than treating s.357 as a merely directory provision. The court arrived at this conclusion considering the various instances where three concerned section is applied casually and not given much thought and consideration. The court pointed out that monetary compensation though cannot be a substitute for the loss incurred by the victim party in a criminal suit, however, it would at least provide some solace to the aggrieved.