Full Text
HIGH COURT OF DELHI
Date of Decision: 13th May, 2021
MST. X (THROUGH MOTHER AND NATURAL GUARDIAN) ..... Petitioner
Through: Ms. Prabhsahay Kaur, Advocate.
Through: Ms. Nandita Rao, ASC (Criminal) with Ms. Gayatri Virmani and
Mr. Amit Peswani, Advocates for the State.
Mr. Zeeshan Hashmi, Advocate for respondent No. 2.
Mr. Sumeet Chaudhary, Advocate for respondent No. 3.
JUDGMENT
19.08.2020 made by the learned Additional Sessions Judge (ASJ) (POCSO), Saket Courts, New Delhi in CIS SC No. 66/2020 arising from FIR No.
645/2019 registered under sections 377/506 of the Indian Penal Code, 1860
(‘IPC’, for short) read with section 6 of the Protection of Children from
2021:DHC:1582
Sexual Offences Act, 2012 (‘POCSO Act’, for short) at P.S.: Mehrauli, New Delhi, whereby the learned Sessions Court has awarded to the petitioner, who was the victim of the offence, interim compensation of Rs. 50,000/-.
2. By way of a brief background, the proceedings arise from the petitioner/victim having been subjected to sexual assault, abuse and sodomy by his uncle in the victim’s own house. The prosecution of the accused is underway and is presently at the stage of prosecution evidence, which is scheduled on 18.05.2021. It is stated in the petition that the victim belongs to an extremely weak financial background, with a mother who works as a housemaid and washes utensils in people’s homes and a bed-ridden father who is unable to work due to his medical condition. As per status report dated 27.07.2020 filed by the Investigating Officer before the learned ASJ the family’s monthly household income is about Rs.6,000/- in which 04 members of the family are to sustain.
3. Ms. Prabhsahay Kaur, learned counsel appearing on behalf of the petitioner contends that order dated 19.08.2020 made by the learned ASJ in CIS SC No. 66/2020 (‘impugned order’, for short) is flawed inasmuch as in awarding interim compensation of Rs. 50,000/-, the learned ASJ has only taken into account the expected expenditure that the victim may incur. In sum and substance, it is Ms. Kaur’s contention that the learned ASJ has failed to appreciate that, even at the interim stage, compensation is to be granted to a minor who is victim of sexual abuse, to enable the victim and his family to overcome the incident and to compensate for the damaging effect on the victim’s psyche and to help rehabilitate the victim into society; for ‘relief’ and ‘rehabilitation’; and not merely to cover for the expenses to be incurred for the time being. Learned counsel further contends that treating the Delhi Victim Compensation Scheme 2018 (‘DVC Scheme 2018’, for short) as a benchmark, interim compensation awarded should have been somewhere between Rs. 6 lacs and Rs.10.50 lacs; since under the applicable entry of the Schedule to Part II of the DVC Scheme 2018, a minimum compensation of Rs.[4] lacs and a maximum compensation of Rs.[7] lacs has been prescribed for unnatural sexual assault, with a further provision that such minimum and maximum compensation shall stand increased by 50% if the victim is a minor. It is contended that this is in accord with the decision of the Hon’ble Supreme Court in Nipun Saxena & Anr. Vs. Union of India & Ors.1, in which case it was inter alia directed that the National Legal Services Authority Compensation Scheme as approved by the Hon'ble Supreme Court w.e.f. 02.10.2018 should function as a guideline for the special courts to award compensation for a victim of child sexual abuse under Rule 7 of Protection of Children from Sexual Offences Rules 2012, (‘2012 Rules’, for short) which rule has now been replaced by Rule 9 of Protection of Children from Sexual Offences Rules, 2020 (‘2020 Rules’, for short).
4. Notice in this petition was issued on 07.09.2020; whereupon Ms. Nandita Rao, learned Additional Standing Counsel (Criminal) appeared on behalf of the State (Government of NCT of
Delhi)/respondent No.1 and pointed-out that though the Delhi Victim Compensation Scheme is funded by the Government of NCT of Delhi, the scheme is administered by the Delhi State Legal Services Authority (‘DSLSA’ for short); and that therefore it is necessary to implead DSLSA as a party-respondent to the present proceedings. Accordingly, DSLSA was impleaded as party-respondent No. 3 in the matter. The accused/respondent No. 2 is represented by Mr. Zeeshan Hashmi, Advocate.
5. Subsequently, pleadings in the matter were completed; and counsel for the parties were heard at length. Impugned Order
6. In summary, the following portions of the impugned order may be noticed to appreciate the considerations and reasoning employed by the learned ASJ: “Medical Treatment The child Victim ‘S’ was sodomized by his own uncle repeatedly. Child is not going to the school and belongs to a poor family. The child requires to be rehabilitated. His psychological counseling also requires to be undertaken in view of the observations made by CWC. Since CWC has already issued directions regarding psychological counseling by IHBAS, no further directions are required from the Court at this stage. CWC may review the counseling reports periodically (may be every 3/6 months depending upon frequency of meetings of the Victim with the doctors) and in case the Victim requires such medical intervention which cannot be provided free of cost by IHBAS or any other medical institution, a report may be filed before this Court with prayer for grant of interim compensation for medical intervention. No recommendation for interim compensation on this court is required at this stage in the considered view of the Court. The case reported in newspapers wherein Delhi Govt. reportedly granted compensation of Rs.10 Lakhs to the Victim is different from this one as the Victim in the said case is reported to be critical and battling for life. Education Now coming to the second part i.e. compensation for education of the child Victim. It is reported by the IO that the child belongs to a very poor family. IO has reported that monthly income of the family of the Victim is only about Rs.6,000/-. It is averred in the application that family of the Victim earns Rs.10,000/-monthly. The Victim is traumatized and parents are scared of sending him to school without proper security. Parents do not have sufficient money to arrange for a good school where these aspects can be are taken care of. The Victim is six years old, and shall be attending primary school now. This need of the child victim is imminent and immediate. So the amount of interim compensation has to be awarded keeping in mind all these factors, and the probable amount that may be required for imparting education to the Victim in a primary school. Decision Considering the level of education that shall be imparted to the child Victim, interim compensation in the sum of Rs.50,000/shall be an appropriate amount at this stage, in considered view of the Court. Court recommends accordingly. Compensation shall be disbursed as per rules.” (underscoring supplied; bold in original) Statutory landscape
7. The statutory framework and judicial precedents that are required to be noticed for purposes of the present petition are set-out hereinbelow. The general legal provision relating to payment of compensation to victims of crime is section 357A of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’, for short) and reads as under: Section 357A Cr.P.C. “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, 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 Service 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.” (emphasis supplied)
8. Specifically in relation to compensation to children who are victims of sexual offences, the provisions of the POCSO Act and POCSO Rules provide as follows: Section 33 POCSO Act
(i) type of abuse, gravity of the offence and the severity of the mental or physical harm or injury suffered by the child;
(ii) the expenditure incurred or likely to be incurred on his medical treatment for physical and/or mental health;
(iii) loss of educational opportunity as a consequence of the offence, including absence from school due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason;
(iv) loss of employment as a result of the offence, including absence from place of employment due to mental
(v) the relationship of the child to the offender, if any;
(vi) whether the abuse was a single isolated incidence or whether the abuse took place over a period of time;
(vii) whether the child became pregnant as a result of the offence;
(viii) whether the child contracted a sexually transmitted disease (STD) as a result of the offence;
(ix) whether the child contracted human immunodeficiency virus (HIV) as a result of the offence;
(x) any disability suffered by the child as a result of the offence;
(xi) financial condition of the child against whom the offence has been committed so as to determine his need for rehabilitation;
(xii) any other factor that the Special Court may consider to be relevant.
(4) The compensation awarded by the Special Court is to be paid by the State Government from the Victims Compensation Fund or other scheme or fund established by it for the purposes of compensating and rehabilitating victims under section 357A of the Code of Criminal Procedure or any other laws for the time being in force, or, where such fund or scheme does not exist, by the State Government. (5) The State Government shall pay the compensation ordered by the Special Court within 30 days of receipt of such order. (6) Nothing in these rules shall prevent a child or his parent or guardian or any other person in whom the child has trust and confidence from submitting an application for seeking relief under any other rules or scheme of the Central Government or State Government.” Rule 9 POCSO Rules, 2020 “9. Compensation.–– (1) The Special Court may, in appropriate cases, on its own or on an application filed by or on behalf of the child, pass an order for interim compensation to meet the needs of the child for relief or rehabilitation at any stage after registration of the First Information Report. Such interim compensation paid to the child shall be adjusted against the final compensation, if any. (2) The Special Court may, on its own or on an application filed by or on behalf of the victim, recommend the award of compensation where the accused is convicted, or where the case ends in acquittal or discharge, or the accused is not traced or identified, and in the opinion of the Special Court the child has suffered loss or injury as a result of that offence. (3) Where the Special Court, under sub-section (8) of section 33 of the Act read with sub-sections (2) and (3) of section 357A of the Code of Criminal Procedure, 1973 (2 of 1974) makes a direction for the award of compensation to the victim, it shall take into account all relevant factors relating to the loss or injury caused to the victim, including the following:-
(i) type of abuse, gravity of the offence and the severity of the mental or physical harm or injury suffered by the child;
(ii) the expenditure incurred or likely to be incurred on child’s medical treatment for physical or mental health or on both;
(iii) loss of educational opportunity as a consequence of the offence, including absence from school due to mental
(iv) loss of employment as a result of the offence, including absence from place of employment due to mental
(v) the relationship of the child to the offender, if any;
(vi) whether the abuse was a single isolated incidence or
(vii) whether the child became pregnant as a result of the offence;
(viii) whether the child contracted a sexually transmitted
(ix) whether the child contracted human immunodeficiency virus (HIV) as a result of the offence;
(x) any disability suffered by the child as a result of the offence;
(xi) financial condition of the child against whom the offence has been committed so as to determine such child’s need for rehabilitation;
(xii) any other factor that the Special Court may consider to be relevant.
(4) The compensation awarded by the Special Court is to be paid by the State Government from the Victims Compensation Fund or other scheme or fund established by it for the purposes of compensating and rehabilitating victims under section 357A of the Code of Criminal Procedure, 1973 or any other law for the time being in force, or, where such fund or scheme does not exist, by the State Government. (5) The State Government shall pay the compensation ordered by the Special Court within 30 days of receipt of such order. (6) Nothing in these rules shall prevent a child or child’s parent or guardian or any other person in whom the child has trust and confidence from submitting an application for seeking relief under any other rules or scheme of the Central Government or State Government.” It may be noted that Rule 9 of the 2020 Rules is verbatim the same as Rule 7 of the 2012 Rules. Nipun Saxena vs. Union of India
9. The authoritative judicial pronouncement on the issue is that of the Hon’ble Supreme Court in Nipun Saxena vs. Union of India[2], in which judgment the Hon’ble Supreme Court set the tone for grant of compensation to minors who are victims of sexual offences. It is pertinent to note that though several orders were passed in Nipun Saxena (supra), order dated 05.09.2018 made by a 3-Judge Bench of the Hon’ble Supreme Court is the one that is relevant for purposes of the present proceedings.
10. In order dated 05.09.2018 made by it, the Hon’ble Supreme Court recorded that under its directions the National Legal Services Authority (‘NALSA’ for short) had drawn-up the NALSA’s Compensation Scheme for Women Victims/Survivors of Sexual
Assault/other Crimes-2018 (‘NALSA Scheme 2018’, for short) but no scheme of a similar nature had been framed in so far as children were concerned. In this backdrop and in the context of section 33(8) of the POCSO Act, which provides for payment of compensation to children who are victims of sexual offences, and further noticing Rule 7 of the 2012 Rules, the Hon’ble Supreme Court observed as follows:
4. ELIGIBILITY FOR COMPENSATION — The victim or his/her dependent(s), as the case may be, shall be eligible for the grant of compensation after satisfying the criteria that he/she should not have been compensated for the loss or injury under any other scheme of the Central Government or the Government: …”
13.
INTERIM RELIEF TO THE VICTIM - The Delhi State Legal Services Authority or District Legal Services Authority, as the case may be, may order for immediate first-aid facility or medical benefits to be made available free of cost or any other interim relief (including interim monetary compensation) as deemed appropriate, to alleviate the suffering of the victim on the certificate of a police officer, not below the rank of the officer-in-charge of the police station, or a Magistrate of the area concerned or on the application of the victim/ dependents or suo moto: Provided that the, interim relief so granted shall not be more than Rs.50,000/- (Rupees Fifty thousand) in any case except in cases of extreme hardship and gravity of the offence where an order may be passed for the reasons to be recorded in writing: * Provided further that in cases of acid attack a sum of Rs. One lakh shall be paid to the victim within fifteen days of the matter being brought to the notice of DSLSA/DLSA. The order granting interim compensation shall be passed by the DSLSA/DLSA within seven days of the matter being brought its notice and the DSLSA shall pay the compensation within eight days of passing of order. Thereafter an additional sum of Rs.two lakhs shall be awarded and paid to the victim as expeditiously as. possible and positively within two months.” DVC Scheme 2018: Part-II “Part-II This part shall be called “Compensation Scheme for Women Victims/Survivors of Sexual Assault/Other Crimes” * * * * *
2. DEFINITIONS -
1) In this Part, unless the context otherwise requires:— … (g) 'Women Victim Compensation Fund' — means a fund segregated for disbursement for women victim, out of State Victim Compensation Fund and Central Fund. Within the State Victim Compensation Fund, a separate Bank Account shall be maintained as a portion of that larger fund which shall contain the funds contributed under CVCF Scheme by MHA, GOI contributed from Nirbhaya Fund apart from funds received from the State Victim Compensation Fund which shall be utilised only for victims covered under this Chapter * * * * * (i) 'Injury' means any harm caused to body or mind of a female. (j) 'Minor' means a girl child who has not completed the age of 18 years. * * * * * (p) 'Woman Victim/ victim of other crime' means a woman who has suffered physical or mental injury as a result of any offence mentioned in the attached Schedule including Sections 304 B, Section 326A, Section 498A IPC (in case of physical injury of the nature specified in the schedule) including the attempts and abetment. * * * * *
3. WOMEN VICTIMS COMPENSATION FUND— (1) There shall be a Fund, namely, the Women Victims Compensation Fund from which the amount of compensation, as decided by the Delhi State Legal Services Authority or District Legal Services Authority, shall be paid to the women victim or her dependent (s) who have suffered loss or injury as a result of an offence and who require rehabilitation. * * * * *
4. ELIGIBILITY FOR COMPENSATION - A woman victim or her dependent (s) as the case may be, shall be eligible for grant of compensation from multiple schemes applicable to her. However, the compensation received by her in the other schemes with regard to Section 357-B Cr.P.C., shall be taken into account while deciding the quantum in the such subsequent application. * * * * *
7. RELIEFS THAT MAY BE AWARDED BY THE STATE OR DISTRICT LEGAL SERVICES AUTHORITY. - The DSLSA or DLSA may award compensation to the victim or her dependents to the extent as specified in the scheduled attached hereto.
8. FACTORS TO BE CONSIDERED WHILE AWARDING COMPENSATION - While deciding a matter, the Delhi State Legal Services Authority/District Legal Services Authority may take into consideration the following factors relating to the loss or injury suffered by the victim: (1) Gravity of the offence and severity of mental or physical harm or injury suffered by the victim; (2) Expenditure incurred or likely to be incurred on the medical treatment for physical and/or mental health including counselling of the victim, funeral, travelling during Investigation/ inquiry/trial (other than diet money); (3) Loss of educational opportunity as a consequence of the offence, including absence from school/college due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason; (4) Loss of employment as a result of the offence, including absence from place of employment due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason; (5) The relationship of the victim to the offender, if any; (6) Whether the abuse was a single isolated incidence or (7) Whether victim became pregnant as a result of the offence, whether she had to undergo Medical Termination of Pregnancy (MTP)/give birth to a child, including rehabilitation needs of such child; (8) Whether the victim contracted a sexually transmitted (9) Whether the victim contracted human immunodeficiency virus (HIV) as a result of the offence; (10) Any disability suffered by the victim as a result of the offence; (11) Financial condition of the victim against whom the offence has been committed so as to determine her need for rehabilitation and re-integration needs of the victim. (12) In case of death, the age of deceased, her monthly income, number of dependents, life expectancy, future promotional/growth prospects etc. (13) Or any other factor which the DSLSA/DLSA may consider just and sufficient.
9. PROCEDURE FOR GRANT OF COMPENSATION— (1) Wherever, a recommendation is made by the court for compensation under sub-sections (2) and/or (3) of Section 357A of the Code, or an application is made by any victim or her dependent(s), under sub-section (4) of Section 357A of the Code, to the Delhi State Legal Services Authority or District Legal Services Authority, for interim compensation it shall primafacie satisfy itself qua compensation needs and identity of the victim. As regards the final compensation, it shall examine the case and verify the contents of the claim with respect to the loss/injury and rehabilitation needs as a result of the crime and may also call for any other relevant information necessary for deciding the claim. Provided that in deserving cases and in all acid attack cases, at any time after commission of the offence, Member Secretary or Special Secretary, DSLSA or Secretary, DLSA may suo moto or after preliminary verification of the facts proceed to grant interim relief as may be required in the circumstances of each case. (2) The inquiry as contemplated under sub-section (5) of Section 357A of the Code, shall be completed expeditiously and the period in no case shall exceed beyond sixty days from the receipt of the claim/petition or recommendation: Provided that in cases of acid attack an amount of Rupee One lakh shall be paid to the victim within 15 days of the matter being brought to the notice of DLSA. The order granting interim compensation shall be passed by DLSA within 7 days of the matter being brought to its notice and the DSLSA shall pay the compensation within 8 days of passing of the order. Thereafter, an amount of Rs. 2 lakhs shall be paid to the victim as expeditiously as possible and positively within two months of the first payment* Provided further that the victim may also be paid such further amount as is admissible under this Scheme. (3) After consideration of the matter, the DSLSA or DLSA, as the case may be, upon its satisfaction, shall decide the quantum of compensation to be awarded to the victim or her dependent(s) taking into account the factors enumerated in Clause 8 of the Scheme, as per schedule appended to this Part. However, in deserving cases, for reasons to be recorded, the upper limit may be exceeded. Moreover, in case the victim is minor, the limit of compensation shall be deemed to be 50% higher than the amount mentioned in the Schedule appended to this Part. (4) The DSLSA/DLSA may call for any record or take assistance from any Authority/Establishment/lndividual/ Police/Court concerned or expert for smooth implementation of the Scheme. (5) In case trial/appellate court gives findings that the criminal complaint and the allegations were false, then Legal Services Authority may initiate proceedings for recovery of compensation, if any, granted in part or full under this Scheme, before the Trial Court for its recovery as if it were a fine." * * * * *
11.
METHOD OF DISBURSEMENT OF COMPENSATION — (1) The amount of compensation so awarded shall be disbursed by the DSLSA by depositing the same in a Bank in the joint or single name of the victim/dependent(s). In case the victim does not have any bank account, the DLSA concerned would facilitate opening of a bank account in the name of the victim and in case the victim is a minor along with a guardian or in case, minor is in a child care institution, the bank account shall be opened with the Superintendent of the Institution as Guardian. However, in case the victim is a foreign national or a refugee, the compensation can be disbursed by way of cash cards. Interim amount shall be disbursed in full. However, as far as the final compensation amount is concerned, 75% (seventy five percent) of the same shall be put in a fixed deposit for a minimum period of three years and the remaining 25% (twenty five percent) shall be available for utilization and initial expenses by the victim/dependent(s), as the case may be. (2) In the case of a minor, 80% of the amount of compensation so awarded, shall be deposited in the fixed deposit account and shall be drawn only on attainment of the age of majority, but not before three years of the deposit. Provided that in exceptional cases, amounts may be withdrawn for educational or medical or other pressing and urgent needs of the beneficiary at the discretion of the DSLSA/ DLSA. (3) The interest on the sum, if lying in FDR form, shall be credited directly by the bank in the savings account of the victim/dependent(s), on monthly basis which can be withdrawn by the beneficiary.
12.
INTERIM RELIEF TO THE VICTIM— The Delhi State Legal Services Authority or District Legal Services Authority, as the case may be, may order for immediate first-aid facility or medical benefits to be made available free of cost or any other interim relief (including interim monetary compensation) as deemed appropriate, to alleviate the suffering of the victim on the certificate of a police officer, not below the rank of the officer-in-charge of the police station, or a Magistrate of the area concerned or on the application of the victim/ dependents or suo moto. Provided that as soon as the application for compensation is received by the DSLSA/DLSA, a sum of Rs.5000/- or as the case warrants up to Rs. 10,000/- shall be immediately disbursed to the victim through preloaded cash card from a Nationalized Bank by the Secretary, DLSA or Member Secretary, DSLSA/Special Secretary, DSLSA. Provided that the, interim relief so granted shall not be less than 25 per cent of the maximum compensation awardable as per schedule applicable to this Part, which shall be paid to the victim in totality. Provided further that in cases of acid attack a sum of Rs. One lakh shall be paid to the victim within 15 days of the matter being brought to the notice of DSLSA/DLSA. The order granting interim compensation shall be passed by the DSLSA/DLSA within 7 days of the matter being brought to its notice and the DSLSA shall pay the compensation within 8 days of passing of order. Thereafter an additional sum of Rs.[2] lakhs shall be awarded and paid to the victim as expeditiously as possible and positively within two months.” * * * * * Note: As per Order of Hon'ble Supreme Court of lndia in W.P. (C) No. 565/2012 titled Nipun Saxena & Anr. Vs. Union of India & Ors. dated 05.09.2018, it is clarified that this Part shall also function as a Guideline to the Special Court for the award of compensation to victims of child sexual abuse under Section 33(8) of Protection of Children from Sexual Offences Act, 2012 and under Rule 7 of Protection of Children from Sexual Offences Rules, 2012 until the Rules are finalized by the Central Government. The Special Judge will take the provisions of the Protection of Children from Sexual Offences Act, 2012 into consideration as well as any circumstances that are special to the victim while passing an appropriate order. The guidelines will be. applicable to all children as the legislation is gender neutral. The Special Judge will also pass appropriate orders regarding actual physical payment of the compensation or the interim compensation so that it is not misused or mis-utilized and it actually available for the benefit of the child victim. If the Special Judge deems it appropriate, an order of depositing the amount in an interest-bearing account may be passed.”
12. It is extremely important to point-out that the above-quoted Note appearing at the end of Part-II of the DVC Scheme 2018 is in complete contradiction to Explanation appended to the end of the NALSA Scheme 2018 relating to compensation for women victims, which Explanation reads as follows: “Explanation: It is clarified that this Chapter does not apply to minor victims under POCSO Act, 2012 in so far as their compensation issues are to be dealt with only by the Ld. Special Courts under Section 33(8) of POCSO Act, 2012 and Rules (7) of the POCSO Rules, 2012.”
13. Accordingly, as of date, the issues raised by way of the present petition are covered by section 357A of the Cr.P.C., section 33(8) of the POCSO Act read with Rule 9 of the 2020 Rules, the DVC Scheme and the mandate of the Hon’ble Supreme Court in Nipun Saxena (supra). Factual backdrop
14. In the backdrop of the above-referred statutory landscape, it is argued that the petitioner moved an application dated 07.01.2020 before the learned ASJ under section 33(8) of the POCSO Act read with Rule 7(2)(3) of the 2012 Rules (as were applicable at that time) seeking interim compensation in accordance with the DVC Scheme 2018. It is submitted that all requisite details of the financial status, family income, gravity of the offence, physical and psychological impact and personal harm resulting from the offence were set-out in this application as required. Through the Investigating Officer, the State filed reply dated 10.02.2020 to this application.
15. Subsequently a second application dated 25.02.2020 was also filed before the learned ASJ seeking compensation; to which the Investigating Officer filed another reply dated 27.07.2020. It is pointed-out that the second application came to be filed since the learned ASJ had not decided the question of interim compensation despite the first application having been moved; but in any case even in the first application the petitioner had furnished all required factual information as per the parameters set-out in Form-B, viz. the Preliminary Assessment Report, that are required to be filed by the police under the 2020 Rules. Attention of this court is drawn to the fact that in replies dated 10.02.2020 and 27.07.2020 the petitioner’s difficult family situation was verified and confirmed by the Investigating Officer. In fact, in reply dated 27.07.2020 the Investigating Officer had this to say: “Hon’ble court also directed to file the status report regarding financial condition of Victim and his family. In this regard, it is submitted that on enquiry, it came to know the financial condition of victim family is very poor. In the family, Mumtaz (mother of Victim) w/o Hilala Sheikh R/o H. N. 1064, Ward No.07, Mehrauli is only doing a job of house cleanliness and earning Rs.6,000/- per month and residing in rented accommodation and paying rent Rs.3,000/per month. Hilal Sheikh (Father of Victim) has not been working since 2-3 years due to health problem.”
16. Vidé its report dated 05.03.2020 given in the matter, the Child Welfare Committee (‘CWC’) that assessed the situation of the minor said this: “CSJ has been appointed as Support Person. Report from CSJ is still awaited. The child is traumatized and has gone into a shell and barely interacts with anyone with obvious trust issues and constant feeling of helpness (sic). The child needs counselling by psychologist. * * * * * — Director, IHBAS is directed to examine the case of the child and provide psycho/counseling treatment. The child may be admitted in IHABAS if required. * * * * * BBA is further requested to submit the status of release of victim compensation.” The above report of the CWC is also extracted in the impugned order.
17. Attention of the court is further drawn to the petitioner’s statement recorded under section 164 Cr.P.C., in which, after observing that she was satisfied that the minor was making his statement voluntarily without any pressure or influence of any kind, the learned Metropolitan Magistrate records the responses of child which prima facie, and subject of course to being tested during trial, confirm the very serious nature of allegations that the minor has made against his uncle, who he colloquially calls ‘jamai’ while identifying him by name.
18. Counsel for petitioner has further drawn attention of this court to the following judicial pronouncements whereby Co-ordinate and Larger Benches of other High Courts have awarded compensation to minor victims of crime, which it is submitted, is commensurate to the offence committed, unlike in the present case. A brief reference to the decision of other courts may be made at this point:
(i) In Lalsuonglien & Others vs. State of Manipur[3], which was a case of sodomy committed on five minor boys, relying on the verdict of the Hon’ble Supreme Court in Nipun Saxena (supra) and the NALSA Scheme 2018, a Co-ordinate Bench of the Hon’ble High Court of Manipur awarded interim compensation in the sum of Rs. 7 lacs to each of the victims in 2019.
(ii) By order dated 01.08.2019 in Re: Alarming Rise in the Number of Reported Child Rape Incidents[4], in what came to be referred to as the Unnao Rape case, the Hon’ble Supreme Court granted Rs. 25 lacs by way of interim compensation to some of the victims.
(iii) Vidé judgment dated 21.03.2016 in The Minor through
Guardian Zareen vs. State (Govt. of NCT of Delhi)5, which was a case of brutal sexual assault on a 13-year old boy, a Division Bench of this court enhanced the compensation awarded by the
Order dated 01.08.2019 in Suo Moto Writ Petition (Criminal) No.1/2019 Judgment dated 21.03.2016 in W.P. (Crl.) No.798/2015 Juvenile Justice Board under section 357A of the Cr.P.C. from Rs. 50,000/- to Rs. 3,00,000 with the following reasoning:
(l) If a victim applies for compensation directly to the legal service authority and not to the court, the authority would decide whether compensation is payable, and if so in what amount, subject to the other stipulations contained in the DVC Scheme
2018.
(m) There should be no confusion that a decision made by the court, whether as a ‘recommendation’, ‘order’ or ‘direction’, would be binding on the legal service authority, subject only to the court leaving the discretion to quantify the compensation payable to the authority or otherwise, depending upon what is said in the decision.
24. In the above view of the matter, in the opinion of this court, the learned ASJ was not bound by the DVC Scheme 2018, which scheme including the maximum and minimum compensation envisaged in the schedule thereto, would at best serve as ‘guidelines’ for assessment of compensation payable to the petitioner. Considering that the petitioner was subject to the offence of ‘Unnatural Sexual Assault’, for which the Schedule to Part II setsdown the minimum limit of compensation as Rs. 4 lacs and the upper limit of compensation as Rs. 7 lacs. Since the petitioner is a ‘minor’ for whom Clause 9 (Part-II) of the DVC Scheme 2018 says that the minimum and maximum limits of compensation would be deemed to be 50% higher than those mentioned in the Schedule, in the petitioner’s case the minimum and maximum limits would stand enhanced from Rs. 4 lacs to Rs. 6 lacs and from Rs. 7 lacs to Rs. 10.[5] lacs respectively. To reiterate, these limits on the amount of compensation payable would be binding upon the DLSA/DSLSA but not upon the court. It may be noted that Clause 9(3) (Part II) of the DVC Scheme 2018 even grants discretion to the DLSA/DSLSA to say that “... However, in deserving cases, for reasons to be recorded, the upper limit may be exceeded.”
25. Furthermore, the Second Proviso to Clause 12 (Part-II) of the DVC Scheme 2018 says that the interim relief granted to a victim shall not be less than 25% of the maximum compensation awardable as per the Schedule and that such compensation shall be paid to the victim in totality. Clearly therefore, if the petitioner was to approach the DLSA/DSLSA seeking interim compensation, in accordance with the DVC Scheme 2018, the DLSA/DSLSA would be bound to award to the petitioner the sum of Rs. 2,62,500/- i.e. 25% of Rs. 10.[5] lacs. It needs no jurisprudential justification to say therefore, that the court must bear this amount in mind as a benchmark while assessing the interim compensation payable to the petitioner.
26. Insofar as the factors to be considered for quantifying interim compensation are concerned, these would be the same as those for assessing compensation as indicated in Rule 9(3) of the 2020 Rules which are in pari materia with Clause 8 (Part II) of the DVC Scheme 2018. Of course, the factors set-out in the said Rule and Clause are not exhaustive and the court is required to “take into account all relevant factors relating to the loss or injury caused to the victim”.
27. A reading of the petitioner’s statement recorded under section 164 Cr.P.C on 09.12.2019 and report dated 05.03.2020 of the CWC show that as per the allegations, the petitioner was subject to repeated aggravated, unnatural, penetrative and oral sexual assault of different types and was also threatened with a knife on his neck, apart from being physically assaulted. The CWC has appointed a support person for the petitioner and has recorded in its report that the petitioner is traumatised; that he has gone into a shell and hardly interacts with anyone; and that he is suffering from trust issues and the constant feeling of helplessness. The CWC has opined that the petitioner needs psychological counselling and has referred him to the Director, IHBAS, to examine the case and provide psychological counselling and treatment; and if required, even admit the petitioner to the institution. In replies dated 10.02.2020 and 27.07.2020 filed to the compensation applications, the Investigating Officer has verified and confirmed the petitioner’s impecunious circumstances, whereby a family of 04 members is surviving on the income only of the mother, who makes about Rs. 6,000/- per month by working as a part-time housemaid cleaning utensils etc., of which a sum of Rs.3,000/- per month goes towards payment of rent; and that the petitioner’s father has not been working for the last 2-3 years due to health problems.
28. From the petitioner’s application dated 25.02.2020 seeking compensation, it can be gathered that the accused is the petitioner’s uncle, who is alleged to have subjected the petitioner to the offences as detailed above, apart from having suffered the brutal, physical offences in what should have been the ‘safety’ of his own home, it is not just likely but certain that the petitioner, being only a 6-year old child, has suffered extreme psychological trauma, mental agony and post-traumatic stress. It is further stated in the application for compensation that the petitioner is also physically disabled in that he is missing the proximal and distal phalanx of fourth and fifth fingers of his left hand. It is further stated in the application that the child is now even afraid to attend school and his parents are scared of sending him there, by reason of which he is at present abstaining from school and his education is suffering.
29. Although, the learned ASJ does not give any specific basis for assessing interim compensation at Rs. 50,000/-; she also does not say that the said sum is in accordance with the First Proviso to Clause 13 (Part I) of the DVC Scheme 2018; nor does the learned ASJ say that she is bound by the DVC Scheme 2018, regardless of that and in view of the foregoing discussion, the sum of Rs. 50,000/- awarded as interim compensation is low, to say the least. The learned ASJ segregates the heads under which interim compensation is assessed in two parts. One, for medical treatment, in relation to which the learned ASJ says that since the CWC has already issued directions to IHBAS for physiological counselling of the petitioner, no further directions are required from the court at this stage; and that if the petitioner requires medical intervention which cannot be provided free of cost by IHBAS or some other medical institution, a prayer for grant of interim compensation for medical intervention may be made before the court. Two, the learned ASJ assesses the interim compensation payable for the petitioner’s education; and holds that since the petitioner would be attending primary school, Rs. 50,000/is an appropriate amount to take care of the probable amount that would be required for imparting education in primary school.
30. Before proceeding further, it would benefit at this point, to understand the legal concept of ‘compensation’ and thereby of ‘interim compensation’ by referring to the words of the Hon’ble Supreme Court in Yadava Kumar vs. National Insurance Co. Ltd. & Anr.[7] where, in the context of a motor accident claim, the Hon’ble Supreme Court has very pithily explained the concept of ‘compensation’ in the following words:
payable to the petitioner even at the interim stage, the effort of this court should be to offer monetary recompense, to the extent possible, for atonement of the crime to which the petitioner was subject; the physical and mental trauma suffered by him; and the emotional scar left on his psyche.
31. It is not hard to see that apart from the actual expenses that would be incurred for the petitioner’s psychological counselling and treatment at a specialised institution like IHBAS, as recommended by the CWC in its report, it would also be necessary to put money in the hands of the petitioner’s family, to arrange for the petitioner to safely attend the school he was attending earlier or some other school and to cater to his educational needs. The petitioner’s mother would need to spend more time with him to give the petitioner emotional security, since he was assaulted by a relative in his own home; by reason of which she may not be able to go to work.
32. Since the system cannot turn the clock back nor ‘undo’ the offence, there is little else the court can do other than prosecute the offender and provide to the victim whatever psychological security and sense of empowerment that monetary compensation can give.
33. Accordingly, upon an overall appreciation of the facts and circumstances of the case and the legal framework within which it is to be decided, order dated 19.08.2020 made by the learned ASJ in case CIS SC No. 66/2020 arising from F.I.R. No. 645/2019 registered at P.S.: Mehrauli, is set-aside; and the Delhi State Legal Services Authority is directed to disburse and pay to the petitioner interim compensation in the sum of Rs. 6,00,000/- (Rs. Six Lacs Only), forthwith and in any event within 04 weeks of receipt of this order. Of the said sum, Rs. 1,00,000/- (Rs. One Lac Only) shall be paid by the DSLSA by way of electronic remittance into a savings bank account held or to be opened (with DSLSA’s assistance) in the petitioner’s name jointly with his mother, in a nationalised bank; and the remaining Rs. 5,00,000/- (Rs. Five Lacs Only) shall be deposited by the DSLSA by way of a fixed deposit in the petitioner’s name with his mother as joint holder, in a nationalised bank, initially for a period of 5 (five) years with a provision for automatic renewal for another period of 5 (five) years, with a further provision of automatic renewal for a period of 2 (two) years. The interest earned on such fixed deposit shall be credited to the petitioner’s savings bank account, on a monthly basis. The money in the savings bank account shall be available for withdrawal and use by the petitioner through his mother; but the petitioner or his mother shall not be permitted to break or prematurely encash the fixed deposit(s) made, without prior permission of this court. It is clarified that the provision for creation of fixed deposit, of automatic renewals and non-encashment has been made to prevent misapplication, mis-utilisation and frittering-away of the compensation amount meant for the minor petitioner by other members of the family; and to ensure that the money is secure till the petitioner attains the age of 18 years, whereafter the petitioner shall be entitled to use the money as he may decide.
34. It is further directed that the petitioner’s mother shall use and apply the aforesaid sum of Rs. 100,000/- as also the interest received from the fixed deposit created in the petitioner's name, only for the benefit and welfare of the petitioner, towards his medical, educational, rehabilitation and other needs and requirement from time-to-time, and not for any other purpose. If the mother wishes to use the money for any other purpose, she may seek prior leave of this court. In the unfortunate event of the petitioner’s mother passing-away before the petitioner attains majority, the surviving guardian shall be at liberty to approach the court for the directions to secure the interests and welfare of the minor.
35. By way of abundant clarification, the interim compensation hereby awarded shall be subject to adjustment against the final compensation awarded by the learned learned ASJ upon conclusion of the trial.
36. The writ petition is disposed of in the above terms.
37. Pending applications, if any, also stand disposed of.
38. A copy of this order be communicated to counsel for the parties and also to the Secretary, DSLSA within 02 days from today, for information and compliance.