Shakila v. State (NCT of Delhi) & Ors.

7. For the record, it may be noted that this Court vide order dated 02.08.2024 directed the Delhi State Legal Services Authority[6] to examine the possibility of releasing any further compensation under the Delhi Victims Compensation Scheme, 2018[7]. Order dated 27.09.2024 records that the Secretary, DSLSA made a statement that an interim compensation of Rs. 50,000/- can be made, but thereafter, the order dated 04.11.2024 reflects that the DSLSA has argued that the definition of “a dependent” under Clause 2(b) of the DVCS includes the following persons: wife, husband, father, mother, grandparents, unmarried daughter and minor children etc. of the victim and the Petitioners being “the siblings of the deceased as well as the children of the siblings of the deceased”, they would not fall under the category of Dependents under Clause 2(b) of the DVCS.

8. During oral arguments, it was canvassed that the siblings being “married daughters” would disentitle them from any benefits. The Respondents would argue that being married, they would cease to be Dependent.

9. It is stated that the Mother never approached any of the Jail Authorities to redress her grievances, if any.

10. While reasoning that the Jail Staff could not have had any apprehension of the occurrence of such an incident, the Respondents would argue that the Jail authorities cannot be held accountable for the unfortunate demise of the Deceased since, there was no apparent lack NHRC DSLSA in providing security to the inmates and the said liability can only be attributed to the sudden physical assault between the two groups.

11. The Respondents would also contend that the Deceased had an aggressive disposition and had already been convicted for heinous crimes of robbery, etc and had a history of felony.

12. The Respondents also contend that the death did not occur due to any act or omission on the part of the Respondent-Jail authorities, and in fact, the Deceased was an active participant in the inter-gang feud leading to his demise.

ANALYSIS AND FINDINGS:

13. As aforenoted, the present petition has been filed broadly for the following substantive reliefs: a) A judicial inquiry into the death of the Deceased, and b) Grant of appropriate compensation to the Petitioners.

PRAYER FOR JUDICIAL INQUIRY:

14. Adverting to the first prayer, pursuant to the occurrence of the scuffle between the inmates on 03.05.2013, two FIRs bearing nos. 194 of 2013 and 195 of 2013 came to be registered at P.S. Hari Nagar, Delhi. Concurrently, inquest proceedings were also undertaken by the Metropolitan Magistrate, West Delhi, and vide report dated 02.12.2013, it was held that the death of the son of the Petitioner/ Javed @Bhura occurred due to the injuries suffered during the clash between the inmates and the two rival gangs. The findings of the report dated 02.12.2013 are reproduced herein for the sake of convenience. “6. From the material available on record, it is clear that scuffle took place between two groups of jail inmates. During the incident, deceased Javed got severely injured and was shifted to DDU Hospital where he expired on 03.05.2013. doctors who had carried out the post mortem of the deceased have been examined during the proceedings. Dr. Santosh Kumar, CW[8], Dr. B.N. Mishra and DW[9] Dr. Komal Singh were the doctors who carried out the post mortem of the deceased. As per post mortem report “the cause of death is due to shock caused by multiple contusions over extensive parts of body including contused multiple vital organs (i.e. lungs, kidney etc.) as a of blunt, forceful impacts upon the body, subsequent to assault/scuffle”. Manner of death is compatible to homicide. During post mortem, viscera of the deceased was also preserved and was sent to FSL Ahmedabad for comparison. I have also gone though the viscera report wherein it is mentioned that „no poison‟could be detected in the viscera of the deceased.

7. In view of the facts and circumstances, particularly, post mortem report of the deceased Javed, viscera report and statement of CW[4] Ravi, CW[5] Rahul, CW[6] Mukesh and CW[7] Prithvi Singh, it is apparent that the death of the deceased occurred due to injuries suffered by him during scuff which occurred on 03.05.2013 between the two groups. CONCLUSION:

8. On the basis of record of inquest proceedings, it is clear that deceased Javed expired on 03.05.2013 during treatment at DDU Hospital. His death was unnatural. He died was a result of “shock caused by multiple contusions over extensive parts of body including contused multiple vital organs (i.e. lungs, kidney etc.) as a of blunt, forceful impacts upon the body, subsequent to assault/scuffle”. It is pertinent to mention here that case FIR bearing no. 195/13 under 302/323/324/147/149/34 IPC which was registered on 03.05.2013 relating to the death of deceased Javed s/o Mohd. Aziz pending in the court of Ld. ASK Sh. Rakesh Siddharth. Hence, inquest proceedings of the deceased Javed @ Bhura s/o Mohd. Aziz thus stands concluded.”

15. After registration of the FIRs (No. 194 & 195 of 2013) and submitting charge sheets, the learned Trial Court has acquitted all the accused in the case.

16. As is evident, an enquiry has already been conducted. The Ld. Trial Court has also acquitted the accused. Even if this Court had felt the need for a further inquiry into the matter, the same would not be practically possible, twelve years after the incident.

17. Accordingly, this Court does not consider it appropriate to grant the first relief.

GRANT OF APPROPRIATE COMPENSATION:

18. The second prayer before this Court is for appropriate compensation to the substituted Petitioners.

19. As is the stated case of the Respondents, compensation will be determined on the basis of the DVCS and its provisions.

20. The Mother was the beneficiary of an amount of Rs. 1,00,000/-, which was directed to be paid to her by the NHRC. Unfortunately, during the pendency of the Petition, in the year 2016, she passed away.

21. Admittedly, the Mother of the deceased was eligible for compensation, being enumerated in the definition of “Dependent”.

22. The Respondents argue that the substituted Petitioners herein fall outside the ambit of the definition of “Dependent” being Siblings and their children as also, qua the sisters, that they are “married daughters”.

23. The mainstay of the Respondents‟ argument is that the term “Dependent” would only encompass the persons enumerated in the definition, i.e. to the “wife, husband, father, mother, grandparents, unmarried daughter and minor children” and not to the “the siblings of the deceased as well as the children of the siblings of the deceased” of the deceased - Javed @Bhura.

24. The Questions that thus, stands posited for the consideration of this Court are:

1) Whether siblings, not being expressly mentioned in the list of Dependents in the Scheme, are entitled to the benefits of the scheme or not?

2) Whether the fact of a female sibling being married would lead to a conclusion that they can‟t be “Dependent”?

3) Whether the children of siblings would be excluded from the benefits of the scheme?

25. As a prefatory measure, this Court notes that the DVCS, 2018 and its earlier versions (2011 & 2015) trace their existence to Section 357A of the Code of Criminal Procedure, 1972[8], now Section 396 in the Bharatiya Nagrik Suraksha Sanhita, 2023[9]. This Section provides for a „Victim Compensation Scheme‟ to be drawn up for every state and reads as follows:

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 CrPC 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.” (7) The compensation payable by the State Government under this section shall be in addition to the payment of fine to the victim under section 65, section 70 and sub-section (1) of section 124 of the Bharatiya Nyaya Sanhita, 2023.”

26. The legislative history of Section 357A of CrPC would show that the Section came to be introduced on 31-12-2009 by way of an amendment, based on the recommendations of the 154th Law Commission Reports. The Commission, in the said Report, and in particular, in Chapter XV of the same, dwelt in-depth on the concept of “Victimology” and the same formed the foundational basis and the philosophy behind the amendment. It would be apposite to refer to, albeit briefly, some parts of the said report as follows:

27. The thrust of the same was to ensure that the State would provide compensatory measures to the Victims as well as the Dependents.

28. It is in light of this salutary decision of the Government of India, in accepting the recommendation and appropriately amending the CrPC that this Court would have to view the matter at hand. In this endeavour, this Court is also guided by the Judgment of the Hon‟ble Supreme Court in Suresh Vs. State of Haryana10, and more particularly, paras 13 & 14, which read as follows:

13. It would now be appropriate to deal with the issue. The provision has been incorporated in CrPC vide Act 5 of 2009 and the amendment duly came into force in view of the Notification dated 31-12-2009. The object and purpose of the provision is to enable the Court to direct the State to pay compensation to the victim where the compensation under Section 357 was not adequate or where the case ended in acquittal or discharge and the victim was required to be rehabilitated. The provision was incorporated on the recommendation of 154th Report of the Law Commission. It recognises compensation as one of the methods of protection of victims. The provision has received the attention of this Court in several decisions including Ankush Shivaji Gaikwad v. State of Maharashtra [(2013) 6 SCC 770: (2014) 1 SCC (Cri) 285], Gang-Rape Ordered by Village Kangaroo Court in W.B., In re [(2014) 4 SCC 786: (2014) 2 SCC (Cri) 437], Mohd. Haroon v. Union of India [(2014) 5 SCC 252: (2014) 2 SCC (Cri) 510] and Laxmi v. Union of India [(2014) 4 SCC 427: (2014) 4 SCC (Cri) 802] xxxx xxxx xxxx

14. In Abdul Rashid v. State of Odisha [2013 SCC OnLine Ori 493: ILR (2014) 1 Cut 202], to which one of us (Goel, J.) was party, it was observed: (SCC OnLine Ori paras 6-10)

conviction or acquittal. When the State fails to identify the accused or fails to collect and present acceptable evidence to punish the guilty, the duty to give compensation remains. Victim of a crime or his kith and kin have legitimate expectation that the State will punish the guilty and compensate the victim. There are systemic or other failures responsible for crime remaining unpunished which need to be addressed by improvement in quality and integrity of those who deal with investigation and prosecution, apart from improvement of infrastructure but punishment of guilty is not the only step in providing justice to the victim. Victim expects a mechanism for rehabilitative measures, including monetary compensation. Such compensation has been directed to be paid in public law remedy with reference to Article 21. In numerous cases, to do justice to the victims, the Hon'ble Supreme Court has directed payment of monetary compensation as well as rehabilitative settlement where State or other authorities failed to protect the life and liberty of victims. For example, Kewal Pati v. State of U.P. [(1995) 3 SCC 600: 1995 SCC (Cri) 556] (death of prisoner by coprisoner), Supreme Court Legal Aid Committee v. State of Bihar [(1991) 3 SCC 482: 1991 SCC (Cri) 639] (failure to provide timely medical aid by jail authorities, Railway Board v. Chandrima Das [(2000) 2 SCC 465] (rape of Bangladeshi national by Railway staff), Nilabati Behera v. State of Orissa [(1993) 2 SCC 746: 1993 SCC (Cri) 527] (custodial death), Khatri (1) v. State of Bihar [(1981) 1 SCC 623: 1981 SCC (Cri) 225] (prisoners' blinding by jail staff), Union Carbide Corpn. v. Union of India [(1989) 1 SCC 674: 1989 SCC (Cri) 243] (gas leak victims).

7. Expanding scope of Article 21 is not limited to providing compensation when the State or its functionaries are guilty of an act of commission but also to rehabilitate the victim or his family where crime is committed by an individual without any role of the State or its functionary. Apart from the concept of compensating the victim by way of public law remedy in writ jurisdiction, need was felt for incorporation of a specific provision for compensation by courts irrespective of the result of criminal prosecution. Accordingly, Section 357-A has been introduced in the CrPC and a Scheme has been framed by the State of Odisha called „The Odisha Victim Compensation Scheme, 2012‟. Compensation under the said section is payable to victim of a crime in all cases irrespective of conviction or acquittal. The amount of compensation may be worked out at an appropriate forum in accordance with the said Scheme, but pending such steps being taken, interim compensation ought to be given at the earliest in any proceedings.

8. In Ankush Shivaji Gaikwad v. State of Maharashtra [(2013) 6 SCC 770: (2014) 1 SCC (Cri) 285], the matter was reviewed by the Hon'ble Supreme Court with reference to development in law and it was observed: (SCC pp. 785-91 & 797, paras 33-48 & 66-67) „33. The long line of judicial pronouncements of this Court recognised in no uncertain terms a paradigm shift in the approach towards victims of crimes who were held entitled to reparation, restitution or compensation for loss or injury suffered by them. This shift from retribution to restitution began in the mid-1960s and gained momentum in the decades that followed. Interestingly the clock appears to have come full circle by the lawmakers and courts going back in a great measure to what was in ancient times common place. Harvard Law Review (1984) in an article on “Victim Restitution in Criminal Law Process: A Procedural Analysis” sums up the historical perspective of the concept of restitution in the following words: “Far from being a novel approach to sentencing, restitution has been employed as a punitive sanction throughout history. In ancient societies, before the conceptual separation of civil and criminal law, it was standard practice to require an offender to reimburse the victim or his family for any loss caused by the offense. The primary purpose of such restitution was not to compensate the victim, but to protect the offender from violent retaliation by the victim or the community. It was a means by which the offender could buy back the peace he had broken. As the State gradually established a monopoly over the institution of punishment, and a division between civil and criminal law emerged, the victim's right to compensation was incorporated into civil law.”

34. With modern concepts creating a distinction between civil and criminal law in which civil law provides for remedies to award compensation for private wrongs and the criminal law takes care of punishing the wrongdoer, the legal position that emerged till recent times was that criminal law need not concern itself with compensation to the victims since compensation was a civil remedy that fell within the domain of the civil courts. This conventional position has in recent times undergone a notable sea change, as societies world over have increasingly felt that victims of the crimes were being neglected by the legislatures and the courts alike. Legislations have, therefore, been introduced in many countries including Canada, Australia, England, New Zealand, Northern Ireland and in certain States in the USA providing for restitution/reparation by the courts administering criminal justice.

35. England was perhaps the first to adopt a separate statutory scheme for victim compensation by the State under the Criminal Injuries Compensation Scheme,

1964. Under the Criminal Justice Act, 1972 the idea of payment of compensation by the offender was introduced. The following extract from Oxford Handbook of Criminology (1994 Edn., pp. 1237-38), which has been quoted with approval in Delhi Domestic Working Women's Forum v. Union of India [(1995) 1 SCC 14:

20-21, para 16) “16. … „Compensation payable by the offender was introduced in the Criminal Justice Act, 1972 which gave the courts powers to make an ancillary order for compensation in addition to the main penalty in cases where „injury, loss, or damage‟ had resulted. The Criminal Justice Act, 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penological thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act, 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give reasons for not doing so. It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review…. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.‟” (emphasis supplied)

36. In the United States of America, the Victim and Witness Protection Act, 1982 authorises a federal court to award restitution by means of monetary compensation as a part of a convict's sentence. Section 3553(a)(7) of Title 18 of the Act requires courts to consider in every case “the need to provide restitution to any victims of the offense”. Though it is not mandatory for the court to award restitution in every case, the Act demands that the Court provide its reasons for denying the same. Section 3553(c) of Title 18 of the Act states as follows: “If the court does not order restitution or orders only partial restitution, the court shall include in the statement the reason thereof.”

37. In order to be better equipped to decide the quantum of money to be paid in a restitution order, the United States federal law requires that details such as the financial history of the offender, the monetary loss caused to the victim by the offence, etc. be obtained during a presentence investigation, which is carried out over a period of 5 weeks after an offender is convicted.

38. Domestic/Municipal legislation apart even the UN General Assembly recognised the right of victims of crimes to receive compensation by passing a resolution titled “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985”. The Resolution contained the following provisions on restitution and compensation: “Restitution

8. Offenders or third parties responsible for their behaviour should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimisation, the provision of services and the restoration of rights.

9. Governments should review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases, in addition to other criminal sanctions.

10. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of community facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a community.

11. Where public officials or other agents acting in an official or quasiofficial capacity have violated national criminal laws, the victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted. In cases where the Government under whose authority the victimising act or omission occurred is no longer in existence, the State or Government successor-in-title should provide restitution to the victims. Compensation

12. When compensation is not fully available from the offender or other sources, States should endeavour to provide financial compensation to: (a) victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes; (b) the family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimisation.

13. The establishment, strengthening and expansion of national funds for compensation to victims should be encouraged. Where appropriate, other funds may also be established for this purpose, including in those cases where the State of which the victim is a national is not in a position to compensate the victim for the harm.”

39. The UN General Assembly passed a resolution titled “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, 2005” which deals with the rights of victims of international crimes and human rights violations. These principles (while in their draft form) were quoted with approval by this Court in State of Gujarat v. High Court of Gujarat [(1998) 7 SCC 392: 1998 SCC (Cri) 1640] in the following words: (SCC pp. 432-33, para 94)

40. Amongst others the following provisions on restitution and compensation have been made: “12. Restitution shall be provided to re-establish the situation that existed prior to the violations of human rights or international humanitarian law. Restitution requires inter alia, restoration of liberty, family life citizenship, return to one's place of residence, and restoration of employment or property.

13. Compensation shall be provided for any economically assessable damage resulting from violations of human rights or international humanitarian law, such as: (a) Physical or mental harm, including pain, suffering and emotional distress; (b) Lost opportunities including education;

(c) Material damages and loss of earnings, including loss of earning potential;

(d) Harm to reputation or dignity;

41. Back home the Code of Criminal Procedure of 1898 contained a provision for restitution in the form of Section 545, which stated in sub-clause (1)(b) that the Court may direct “payment to any person of compensation for any loss or injury caused by the offence, when substantial compensation is, in the opinion of the court, recoverable by such person in a civil court”.

42. The Law Commission of India in its 41st Report submitted in 1969 discussed Section 545 of the Code of Criminal Procedure of 1898 extensively and stated as follows: “46.12. Section 545.—Under clause (b) of sub-section (1) of Section 545, the court may direct „in the payment to any person of compensation for any loss or injury caused by the offence, when substantial compensation is, in the opinion of the court, recoverable by such person in a civil court‟. The significance of the requirement that compensation should be recoverable in a civil court is that the act which constitutes the offence in question should also be a tort. The word „substantial‟ appears to have been used to exclude cases where only nominal damages would be recoverable. We think it is hardly necessary to emphasise this aspect, since in any event it is purely within the discretion of the criminal courts to order or not to order payment of compensation, and in practice, they are not particularly liberal in utilising this provision. We propose to omit the word „substantial‟ from the clause.”

43. On the basis of the recommendations made by the Law Commission in the above report, the Government of India introduced the Code of Criminal Procedure Bill, 1970, which aimed at revising Section 545 and introducing it in the form of Section 357 as it reads today. The Statement of Objects and Reasons underlying the Bill was as follows: “Clause 365 (now Section 357) which corresponds to Section 545 makes provision for payment of compensation to victims of crimes. At present such compensation can be ordered only when the court imposes a fine; the amount is limited to the amount of fine. Under the new provision, compensation can be awarded irrespective of whether the offence is punishable with fine and fine is actually imposed, but such compensation can be ordered only if the accused is convicted. The compensation should be payable for any loss or injury whether physical or pecuniary and the court shall have due regard to the nature of injury, the manner of inflicting the same, the capacity of the accused to pay and other relevant factors.”

44. As regards the need for courts to obtain comprehensive details regarding the background of the offender for the purpose of sentencing, the Law Commission in its 48th Report on “Some Questions Under the Code of Criminal Procedure Bill, 1970” submitted in 1972 discussed the matter in some detail, stating as follows:

45. The Criminal Procedure Code of 1973 which incorporated the changes proposed in the said Bill of 1970 states in its Statement of Objects and Reasons that Section 357 was “intended to provide relief to the poorer sections of the community” and that the amended CrPC empowered the Court to order payment of compensation by the accused to the victims of crimes “to a larger extent” than was previously permissible under the Code. The changes brought about by the introduction of Section 357 were as follows:

(i) The word “substantial” was excluded.

(ii) A new sub-section (3) was added which provides for payment of compensation even in cases where the fine does not form part of the sentence imposed.

(iii) Sub-section (4) was introduced which states that an order awarding compensation may be made by an appellate court or by the High Court or Court of Session when exercising its powers of revision.

46. The amendments to the Code of Criminal Procedure brought about in 2008 focused heavily on the rights of victims in a criminal trial, particularly in trials relating to sexual offences. Though the 2008 amendments left Section 357 unchanged, they introduced Section 357-A under which the Court is empowered to direct the State to pay compensation to the victim in such cases where “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”. Under this provision, even if the accused is not tried but the victim needs to be rehabilitated, the victim may request the State or District Legal Services Authority to award him/her compensation. This provision was introduced due to the recommendations made by the Law Commission of India in its 152nd and 154th Reports in 1994 and 1996 respectively.

47. The 154th Law Commission Report on the Code of Criminal Procedure devoted an entire chapter to “Victimology” in which the growing emphasis on victim's rights in criminal trials was discussed extensively as under:

provisions can form the constitutional underpinnings for victimology.

9.2. However, in India the criminal law provides compensation to the victims and their dependants, only in a limited manner. Section 357 of the Code of Criminal Procedure incorporates this concept to an extent and empowers the criminal courts to grant compensation to the victims. ***

11. In India the principles of compensation to crime victims need to be reviewed and expanded to cover all cases. The compensation should not be limited only to fines, penalties and forfeitures realised. The State should accept the principle of providing assistance to victims out of its own funds….”

48. The question then is whether the plenitude of the power vested in the courts under Sections 357 and 357-A, notwithstanding, the courts can simply ignore the provisions or neglect the exercise of a power that is primarily meant to be exercised for the benefit of the victims of crimes that are so often committed though less frequently punished by the courts. In other words, whether courts have a duty to advert to the question of awarding compensation to the victim and record reasons while granting or refusing relief to them? ***

66. To sum up: while the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order under Section 357 of the Code of Criminal Procedure would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family.

67. Coming then to the case at hand, we regret to say that the trial court and the High Court appear to have remained oblivious to the provisions of Section 357 CrPC. The judgments under appeal betray ignorance of the courts below about the statutory provisions and the duty cast upon the courts. Remand at this distant point of time does not appear to be a good option either. This may not be a happy situation but having regard to the facts and the circumstances of the case and the time lag since the offence was committed, we conclude this chapter in the hope that the courts remain careful in future.'

9. In Rohtash v. State of Haryana [ Criminal Appeal No. 250 of 1999, decided on 1-4-2008 (P&H)], a Division Bench of the Punjab & Haryana High Court observed: „18. May be, in spite of best efforts, the State fails in apprehending and punishing the guilty but that does not prevent the State from taking such steps as may reassure and protect the victims of crime. Should justice to the victims depend only on the punishment of the guilty? Should the victims have to wait to get justice till such time that the handicaps in the system which result in large scale acquittals of guilty, are removed? It can be a long and seemingly endless wait. The need to address cry of victims of crime, for whom the Constitution in its Preamble holds out a guarantee for “justice” is paramount. How can the tears of the victim be wiped off when the system itself is helpless to punish the guilty for want of collection of evidence or for want of creating an environment in which witnesses can fearlessly present the truth before the Court? Justice to the victim has to be ensured irrespective of whether or not the criminal is punished.

19. The victims have right to get justice, to remedy the harm suffered as a result of crime. This right is different from and independent of the right to retribution, responsibility of which has been assumed by the State in a society governed by the rule of law. But if the State fails in discharging this responsibility, the State must still provide a mechanism to ensure that the victim's right to be compensated for his injury is not ignored or defeated.

20. Right of access to justice under Article 39-A and principle of fair trial mandate right to legal aid to the victim of the crime. It also mandates protection to witnesses, counselling and medical aid to the victims of the bereaved family and in appropriate cases, rehabilitation measures including monetary compensation. It is a paradox that victim of a road accident gets compensation under no fault theory, but the victim of crime does not get any compensation, except in some cases where the accused is held guilty, which does not happen in a large percentage of cases.

21. Though a provision has been made for compensation to victims under Section 357 CrPC, there are several inherent limitations. The said provision can be invoked only upon conviction, that too at the discretion of the Judge and subject to financial capacity to pay by the accused. The long time taken in disposal of the criminal case is another handicap for bringing justice to the victims who need immediate relief, and cannot wait for conviction, which could take decades. The grant of compensation under the said provision depends upon financial capacity of the accused to compensate, for which, the evidence is rarely collected. Further, victims are often unable to make a representation before the court for want of legal aid or otherwise. This is perhaps why even on conviction this provision is rarely pressed into service by the courts. Rate of conviction being quite low, inter alia, for competence of investigation, apathy of witnesses or strict standard of proof required to ensure that innocent is not punished, the said provision is hardly adequate to address to the need of victims. In Hari Singh v. Sukhbir Singh [(1988) 4 SCC 551: 1988 SCC (Cri) 984], referring to provisions for compensation, the Hon'ble Supreme Court observed: (SCC p. 558, para 10)

22. It is imperative to educate the investigating agency as well as the trial Judges about the need to provide access to justice to victims of crime, to collect evidence about financial status of the accused. It is also imperative to create mechanisms for rehabilitation measures by way of medical and financial aid to the victims. The remedy in civil law of torts against the injury caused by the accused is grossly inadequate and illusory.

23. This unsatisfactory situation is in contrast to global developments and suggestions of Indian experts as well. Some of the significant developments in this regard may be noticed as under— (1) UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, highlighting the following areas-

(i) Access to justice and fair treatment;

(ii) Restitution;

(iii) Compensation;

(iv) Assistance.

(2) Council of Europe Recommendation on the Position of the Victim in the Framework of Criminal Law and Procedure, 1985. (3) Statement of the Victims' Rights in the Process of Criminal Justice, issued by the European Forum for Victims' Services in

1996. (4) European Union Framework Decision on the Standing of Victims in Criminal Proceedings. (5) Council of Europe Recommendations on Assistance to Crime Victims adopted on 14-6-2006. (6) 152nd and 154th Reports of the Law Commission of India, 1994 and 1996 respectively, recommending introduction of Section 357-A in the Criminal Procedure Code, prescribing, inter alia, compensation to the victims of crime. (7) Recommendations of the Malimath Committee, 2003.

24. The subject-matter has been dealt with by experts from over 40 countries in series of meetings and a document has been developed in cooperation with United Nations Office at Vienna, Centre for International Crime Prevention and the compilation under the heading “Handbook on Justice for Victims” which deals with various aspects of impact of victimisation, victims assistance programmes and role and responsibility of frontline professionals and others to victims. The South African Law Commission, in its “Issue Paper 7” (1997) under the heading “Sentencing Restorative Justice: Compensation for Victims of Crime and Victim Empowerment” has deliberated on various relevant aspects of this issue. * * *

27. In Malimath Committee Report (March 2003), it was observed: “6.7.1. Historically speaking, Criminal Justice System seems to exist to protect the power, the privilege and the values of the elite sections in society. The way crimes are defined and the system is administered demonstrate that there is an element of truth in the above perception even in modern times. However, over the years the dominant function of criminal justice is projected to be protecting all citizens from harm to either their person or property, the assumption being that it is the primary duty of a State under rule of law. The State does this by depriving individuals of the power to take law into their own hands and using its power to satisfy the sense of revenge through appropriate sanctions. The State (and society), it was argued, is itself the victim when a citizen commits a crime and thereby questions its norms and authority. In the process of this transformation of torts to crimes, the focus of attention of the system shifted from the real victim who suffered the injury (as a result of the failure of the State) to the offender and how he is dealt with by the State. Criminal Justice came to comprehend all about crime, the criminal, the way he is dealt with, the process of proving his guilt and the ultimate punishment given to him. The civil law was supposed to take care of the monetary and other losses suffered by the victim. Victims were marginalised and the State stood forth as the victim to prosecute and punish the accused. 6.7.2. What happens to the right of victim to get justice to the harm suffered? Well, he can be satisfied if the State successfully gets the criminal punished to death, a prison sentence or fine. How does he get justice if the State does not succeed in so doing? Can he ask the State to compensate him for the injury? In principle, that should be the logical consequence in such a situation; but the State which makes the law absolves itself. *** 6.8.1. The principle of compensating victims of crime has for long been recognised by the law though it is recognised more as a token relief rather than part of a punishment or substantial remedy. When the sentence of fine is imposed as the sole punishment or an additional punishment, the whole or part of it may be directed to be paid to the person having suffered loss or injury as per the discretion of the Court (Section 357 CrPC). Compensation can be awarded only if the offender has been convicted of the offence with which he is charged. *** 6.8.7. Sympathising with the plight of victims under criminal justice administration and taking advantage of the obligation to do complete justice under the Indian Constitution in defence of human rights, the Supreme Court and High Courts in India have of late evolved the practice of awarding compensatory remedies not only in terms of money but also in terms of other appropriate reliefs and remedies. Medical justice for the Bhagalpur blinded victims, rehabilitative justice to the communal violence victims and compensatory justice to the Union Carbide victims are examples of this liberal package of reliefs and remedies forged by the Apex Court. The recent decisions in Nilabati Behera v. State of Orissa [(1993) 2 SCC 746: 1993 SCC (Cri) 527] and in Railway Board v. Chandrima Das [(2000) 2 SCC 465] are illustrative of this new trend of using constitutional jurisdiction to do justice to victims of crime. Substantial monetary compensations have been awarded against the instrumentalities of the State for failure to protect the rights of the victim. 6.8.8. These decisions have clearly acknowledged the need for compensating victims of violent crimes irrespective of the fact whether offenders are apprehended or punished. The principle invoked is the obligation of the State to protect basic rights and to deliver justice to victims of crimes fairly and quickly. It is time that the Criminal Justice System takes note of these principles of Indian Constitution and legislate on the subject suitably.” '

29. This Court would now advert to the relevant clauses of the DVCS, being the adaptation of the principles for compensation as set out in the report and adopted by way of an amendment to the CrPC and retained in the BNSS, 2023.

30. The eligibility for compensation is determined by Clause 4 of the DVCS, which reads as follows:

Provided also that the amount received under any other scheme shall be adjusted from the compensation payable hereunder and only the remainder shall be payable by the DSLSA.”

31. The term “Dependent” is defined in Clause 2(b) as follows: “2(b): “Dependent” includes wife, husband, father, mother, grandparents, unmarried daughter and minor children of the victim as determined by the Delhi State Legal Services Authority or District Legal Services Authority on the basis of report of Sub-Divisional Magistrate of the concerned area/Station House Officer/Investigating Officer or on the basis of material placed on record by the dependents by way of affidavit or on its own enquiry.”

32. The definition of “Victim” as assigned in the Scheme is reproduced herein below: “2(k): Victim” means a person who has suffered loss or injury as a result of the offence and in the case of his death, the expression „victim‟ shall mean to include his or her guardian or legal heir;”

33. In Ram Phal Vs. State11, this Court examined the definition of “Victim” in the context of filing of an appeal under Section 372 of the CrPC. While so doing, it had also, in para 38, referred to the provisions of Section 357A of the CrPC and the term “Victim” and held that the terms “Victims” and “Dependents” are disjunctive, with either of the two being entitled to compensation. At the same time, this Court also held that the term “Dependent”, in the context of Section 357A, is of wide import and capable of encompassing within it a large category of persons who depended financially or emotionally on the victim of the crime. While so doing, this Court also held that the definition of “injury” in Section 44 of the IPC [Now Section 2(14) of the BNS], by virtue of Section 2(y) of the CrPC [Now Section 2(2) of the BNSS] would apply to the provisions of the CrPC. Para 38 of the Judgment in Ram Phal (supra), reads as follows: “38. This Court is of the further opinion that the laws of intestacy merely dictate one's position in the set of lineal or other descendants, and the consequent priority to claim a share in the estate of the deceased. They bear no necessary relation to the kind of rights granted to the victim simpliciter (that can, consequently, be exercised by the „legal heir‟). The first set of rights granted are in the area of compensation under Sections 357A-357C and the second set of rights are in the area of the victim's participation in the prosecution of the trial and appeal under Sections 24(8) and 372. As far as the right to claim compensation goes, it is noteworthy that Section 357A reads: “357A. Victim compensation scheme. - (1) Every State Government in coordination 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) xxx. (3) xxx. (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) xxx. (6) xxx.” Section 357A thus envisages that the victim “or his dependents who have suffered loss or injury as a result of the crime” are entitled to compensation rights. This means that the entitlement rests in the victim simpliciter, or his/her dependents, where the victim does not advance a claim. One need not go far to seek the reason for interpreting this provision as restricted to the victim simpliciter; the use of “or” renders “victim” disjunctive from the clause “or his dependents who have suffered loss or injury”, thus compelling the inference that the dependents' right to advance compensation claims is alternative to that of that of the victim. See Fakir Mohd. (dead) by LRs. v. Sita Ram ((2002) 1 SCC 741, R.S. Naik v. A.R. Antuley (1984) 2 SCC 183, Kamta Prasad Aggarwal v. Executive Officer, Ballabgarh, AIR 1974 SC 685, Manmohan Das Shah v. Bishun DasAIR 1967 SC 643. Therefore, if the term “victim” were to be interpreted so expansively as to include all legal heirs, at least within the context of the claim to compensation, the list of lineal and other descendants that qualify as heirs would be far longer than the list of “dependents who have suffered loss or injury as a result of the crime”. Necessarily then, “victim” in Section 357A has to refer to victim simpliciter, failing which (on account of his/her death), the dependants of the deceased victim may make claims. To this extent then, it is clear that the laws of intestacy are of limited utility in defining the scope of the term “legal heir” as far as compensation rights are concerned. The expression “dependent” is of wide import and encompasses a large category of persons such as foster children, parties in live-in relationships and others who depended financially or emotionally on the victim of the crime. Likewise, all legal heirs, by the laws of intestacy, do not necessarily undergo emotional harm or experience “injury”, from the acts or omissions of the accused, and may have neither any motivation nor compulsion to participate in the trial process. This Court is thus unable to affirm that the laws of inheritance/intestacy can be solely determinative of which heirs are entitled to exercise the rights of a victim in the criminal trial process.”

34. It is in the context of the Judgment of this Court in Ram Phal (supra), and for the sake of convenience, that Section 2(14) of the BNS is extracted as follows: “2(14): “injury” means any harm whatever illegally caused to any person, in mind, reputation or body.”

35. For the record, it needs to be stated that the Judgment in Ram Phal (supra) was subject to a fair amount of discussion in the Judgment of the Hon‟ble Supreme Court in the case of Satyapal Singh Vs. State of Maharashtra12. By the said Judgment, while the Hon‟ble Supreme Court would set aside the finding in respect of the existence of an independent right in the victim or their relatives, exercisable without the leave of the High Court, the Hon‟ble Supreme Court did not disturb the other findings in the Judgment in Ram Phal (supra).

36. Reverting now to the DVCS and its salutary scheme - Both “Victims” and “Dependents” are eligible for compensation under the scheme, in the alternative. In light of the foundational Section in the BNSS, as effectuated in the eligibility clause of the Scheme, as well as the Judgment of this Court in Ram Phal (supra), it is evident that it is either the Victim or the Dependent who are eligible for compensation. In the event of there being no claim by the Victim, the Dependent could make a claim.

37. A perusal of Clause 2(b) of the DVCS would make it apparent that the definition of “Dependent”, as articulated therein, is inclusive in nature. Principles of statutory interpretation commend us to look upon an inclusive definition to indicate an intention to enlarge the scope and not restrict it to only those that are enumerated in the inclusive definition.

38. The Apex Court in S.K. Gupta v. K.P. Jain13, while deliberating upon the principles of statutory interpretation and the wide scope and ambit of a definition when the word „include‟ has been used, states as follows: “24. The noticeable feature of this definition is that it is an inclusive definition and, where in a definition clause, the word “include” is used, it is so done in order to enlarge the meaning of the words or phrases occurring in the body of the statute and when it is so used, these words or phrases must be construed as comprehending not only such things which they signify according to their natural import, but also those things which the interpretation clause declares that they shall include (see Dilworth v. Commissioner of Stamps [(1899) AC 99, 105: 79 LT 473] ). Where in a definition section of a statute a word is defined to mean a certain thing, wherever that word is used in that statute, it shall mean what is stated in the definitions unless the context otherwise requires. But where the definition is an inclusive definition, the word not only bears its ordinary, popular and natural sense whenever that would be applicable but it also bears its extended statutory meaning. At any rate, such expansive definition should be so construed as not cutting down the enacting provisions of an Act unless the phrase is absolutely clear in having opposite effect (see Jobbins v. Middlesex County Council [(1949) 1 KB 142: (1948) 2 All ER 610] ). Where the definition of an expression in a definition clause is preceded by the words “unless the context otherwise requires”, normally the definition given in the section should be applied and given effect to but this normal rule may, however, be departed from if there be something in the context to show that the definition should not be applied (see Khanna, J., in Indira Nehru Gandhi v. Raj Narain [(1975) Supp SCC 1, 97] ). It would thus appear that ordinarily one has to adhere to the definition and if it is an expansive definition the same should be adhered to. The frame of any definition more often than not is capable of being made flexible but the precision and certainty in law requires that it should not be made loose and kept tight as far as possible (see Kalya Singh v. Genda Lal [(1976) 1 SCC 304)].”

39. This is all the more relevant in the case of interpreting statutes or provisions, or schemes that are beneficial in nature. The Hon‟ble Supreme Court in Union of India v. Prabhakaran Vijaya Kumar14, has held the following:

„A purposive construction of an enactment is one which gives effect to the legislative purpose by— (a) following the literal meaning of the enactment where that meaning is in accordance with the legislative purpose (in this Code called a purposive-and-literal construction), or (b) applying a strained meaning where the literal meaning is not in accordance with the legislative purpose (in the Code called a purposive-and-strained construction).‟ At p. 661 of the same book, the author has considered the topic of „Purposive Construction‟ in contrast with literal construction. The learned author has observed as under: „Contrast with literal construction.—Although the term “purposive construction” is not new, its entry into fashion betokens a swing by the appellate courts away from literal construction. Lord Diplock said in 1975: “If one looks back to the actual decisions of the [House of Lords] on questions of statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions.” The matter was summed up by Lord Diplock in this way— … I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction, even where this involves reading into the Act words which are not expressly included in it.‟ ”.

40. The Respondents‟ contention that the definition of “Dependent” would have to be limited to the persons listed therein, in the view of this Court, is against the salutary intent of the scheme. The inclusive definition in the Scheme effectively negates the restrictive interpretation sought to be given to the Scheme.

41. In any event, the question as to who is a Dependent already stands settled by the Judgment of this Hon‟ble Court in Ram Phal (supra) which holds that a Dependent would encompass persons who depended financially or emotionally upon the Victim.

42. Though the definition of “Dependent” does not include “siblings”, given the inclusive terminology employed in the definition, non-inclusion of the term “sibling”, cannot ipso facto exclude them from the benefits of the DVCS Scheme. The first Question therefore stands answered in the affirmative.

43. The next question relates to the disentitlement of a married female sibling being disentitled from the benefits of the DVCS. The argument canvassed was that the definition of Dependent only enumerates “Daughters” and not married daughters. Extending the same, it was contended that a married sibling, by virtue of such marriage would also be disentitled. This Court is unable to agree with the same.

44. Given the salutary nature of the scheme, this Court is of the view that Clause 2(b) of the DVCS, 2018, defining “Dependent”, cannot be interpreted in a manner such as to exclude a married daughter from the scheme of things. In our view, the test for determining eligibility for a daughter, married or unmarried, is not the marital status, but that of whether she is “Dependent” on the victim. Since this Court has already held that a sibling is also entitled, there can be no distinction made between a married or an unmarried sibling either. A similar logic would be applicable in the case of the children of the sibling(s).

45. This Court is aware that an expansive definition, as propounded in Ram Phal (Supra) is fraught with an enormous amount of ambiguity, especially in the context of determining “emotional dependence”. There is also the further issue of quantifying the “emotional dependence” for the purpose of grant of compensation.

46. This Court, therefore, believes that the loss or injury that may have been suffered, for the purpose of evaluating the compensation to be provided, would have to undergo a process of evaluating the actual physical or monetary dependence that a person may have had on the Victim by way of a fact-finding exercise which can be conducted by the DSLSA to determine the extent, nature and manner of dependency of a person.

47. Turning next to the argument regarding the ineligibility of the substituted Petitioners to the benefits of the Scheme on the ground of the Mother having received a payment of Rs.1,00,000/-.

48. At this stage, it is important to note that, neither of the parties herein had thought it necessary to produce the order by which the NHRC had directed the payment of Rs.1,00,000/- to the Mother. This Court, after some effort was able to obtain a copy of the proceedings of 10.2.2015 and the contents of the same are extracted hereinbelow: “ Diary No 154212 Case/File No 6291/30/9/2013- AD Victim Name JAVED S/O SALIM Registration Date 24/10/2013 Action List Action No. Action Authority Action Date 4 Concluded and No Further 10/02/2015 Action Required 3 Additional Information Called for 16/09/2014 2 Additional Information Called for 12/06/2014

1 Sent to DG(I), NHRC 31/10/2013 Action Action: Concluded and No Further Action Required (Action No 4) Action Date 10/02/2015 Authority Proceeding These proceedings shall be read in continuation of earlier proceedings of the Commission dated 16.09.2014. In response, the Superintendent, Prison Headquarters, Delhi vide his communication dated 9.1.2015 has submitted the compliance report. Perusal of the same reveals that an amount of Rs. 1,00,000/- (Rupees one lakh only) has been paid to Smt. Sakila mother of deceased under trial prisoner Javed @ Bhura on 29.12.2014 Proof of payment has also been annexed. It has also been informed that conduct of Ramanand, Assistant Supdt. of Jail has been censured on 29.8.2013 while Departmental proceedings against other prison personnel is in progress. The Commission has considered the matter. The criminal case registered in the matter vide FIR No. 194/2013, Police Station Hari Nagar is now under consideration of the court. An amount of interim relief of Rs. 1,00,000/- (Rupees one lakh only) as recommended by the Commission has been paid to mother of the deceased. One of the delinquent prison personnel has already been dealt with and punished departmentally while the disciplinary proceedings are in progress in respect of other prison personnel. The Chief Secretary, Government of NCT of Delhi and the Director General (Prisons), Delhi shall however ensure that the Departmental proceedings pending against the remaining prison personnel are concluded and finalized expeditiously. With this direction, the reports received from the State Authorities are taken on record and the case is closed. Let a copy of these proceedings also be transmitted to the Information Officer, NHRC and to beneficiary for their information.

LINKED WITH MAIN FILE NO. 2638/30/9/2013-JCD. Complaint Diary No 154212 Section M-3 Language HINDI Mode BY POST Received Date 19/10/2013 Complaint Date 14/10/2013 Victim Victim Name JAVED S/O SALIM Gender Male Religion Muslim Cast Unknown Address TIHAR JAIL, District WEST DELHI State DELHI Complainant Name SHAKILA W/O SALIM Address H.NO. E-16 K/254, BRAHAMPURI KA PULIA, SEELAMPUR, District NORTH EAST DELHI State DELHI Incident Incident Place TIHAR JAIL Incident 03/05/2013 Incident Category ALLEGEDCUSTODIAL DEATHS IN JUDICIAL CUSTODY Incident District WEST DELHI Incident Details ….”

49. This Court deems it appropriate to take judicial notice of the said order.

50. A reading of the NHRC order/proceedings makes it apparent that a sum of Rs.1,00,000/- was paid to the Mother in the nature of interim compensation. This amount does not seem to have been made under any Scheme of the Central Government, or the Government of the National Capital Territory of Delhi15. The Respondents have also not raised any such contention.

51. This Court is of the view that since the said amount paid is (a) an “interim compensation”, and (b) the amount so paid was not under any scheme of the Central Government as the GNCTD, the payment of Rs. 1,00,000/- is not a bar to the eligibility of the substituted Petitioners to receive compensation under the DVCS.

52. This Court notes, with some concern, the repeated submission by the Respondent regarding no fault on the part of the jail authorities. The contents of the NHRC proceedings extracted hereinbefore belie this claim.

53. This Court is guided by the judgment of the Hon‟ble Supreme Court in State of A.P. v. Challa Ramkrishna Reddy16 wherein it has held that Prisoners are not shorn of their fundamental rights while in custody. The relevant extract of Challa Ramakrishna Reddy (supra) is reproduced herein below:

GNCTD cease to be a human being. Even when lodged in the jail, he continues to enjoy all his fundamental rights including the right to life guaranteed to him under the Constitution. On being convicted of crime and deprived of their liberty in accordance with the procedure established by law, prisoners still retain the residue of constitutional rights.”

54. A 3-Judge Bench of the Hon‟ble Supreme Court in Sunil Batra

(II) v. Delhi Admn.17 recognizing the right of prisoners to their fundamental rights under Article 21 of the Indian Constitution held as follows:

eye. We have made it clear that no prisoner can be personally subjected to deprivations not necessitated by the fact of incarceration and the sentence of court. All other freedoms belong to him — to read and write, to exercise and recreation, to meditation and chant, to creative comforts like protection from extreme cold and heat, to freedom from indignities like compulsory nudity, forced sodomy and other unbearable vulgarity, to movement within the prison campus subject to requirements of discipline and security, to the minimal joys of self-expression, to acquire skills and techniques and all other fundamental rights tailored to the limitations of imprisonment.”

55. The Jail manual and Rules provide for the safety and security of prisoners. In fact, various High Courts and the Apex Court have time and again deliberated and reiterated that prisoners being entrusted to the care of the prison officials, have a right to protection, and it becomes the duty of those authorities to safeguard the life and wellbeing of every inmate, including those who have been convicted and are serving their sentence. The High Court of Andhra Pradesh in State of Andhra Pradesh vs. Suramalla Ramulu and Ors18 has observed that the mere fact that prisoners have been convicted by a court of law and are serving their sentence does not absolve the authorities of their responsibility. A prisoner does not forfeit his fundamental rights and cannot be deprived of the protections guaranteed under Article 21 of the Constitution of India, except insofar as such deprivation is permitted by law. Relevant extract of the Suramalla Ramulu (supra) judgement is reproduced herein below: “10.⁠ ⁠There is therefore no room for doubt that even a prisoner convicted of a crime undergoing sentence is very much entitled to the fundamental rights guaranteed under the Constitution including that of right to life guaranteed by Article 21 of the Constitution that he shall not be deprieved of his life except by procedures established by law. 1996 SCC OnLine AP 185 11.⁠ ⁠Apart from the Constitutional safe-guards, the jail manuals and the rules framed enjoin the officials administering the jails to ensure safety of prisoners. The prisoner being entrusted to their care is entitled to protection and it is the responsibility of the prison officials to ensure the life and safety of every inmate of the jail including those who may have been convicted and serving sentence. These authorities are not absolved of this responsibility merely because the prisoners had been convicted by a Court of law and were serving sentence. A prisoner, as noticed above, is not denued of his fundamental rights and is not deprived of his constitutional right guaranteed under Article 21 of the Constitution of India except to the extent he has been deprived of it in accordance with law. Shankar, in the instant case died in prison. He was killed even according to the version as put forth by the appellants-respondents by a co-prisoner which took place in jail. It resulted in deprivation of his life contrary to law. The death of Shankar resulted, on account of the acts of omission in taking due care to protect the lives of prisoners and on account of negligence on the part of prison officials in doing their duty properly in ensuring safety of prisoners as they are enjoined to do. 12.⁠ ⁠Once it is held, as in the instant case, that the death of Shankar occured on account of the negligence of the prison officials, negligence in discharge of their duties, the State has to be held vicariously liable for the loss resulting from such negligence. We are fortified in this view by a direct decision of a Division Bench Judgment of this Court in Challa Ramkonda Reddy v. State of A.P. by District Collector, Kurnool (6) AIR 1989 AP 235 and the more recent pronouncement of the Supreme Court in Kewal Pati (Smt.) v. State of U.P. (7) (1995) 3 SCC 600.”

56. This Court is of the firm opinion that it is the bounden duty of the State to ensure the safety of persons who are in its custody. While the deceased Victim may have been a person with criminal antecedents, the State is not absolved of its duty to ensure the safety and well-being of the prisoners in its custody. This Court believes that it is the duty of the State to ensure that every person who is in custody is kept safe and secure from themselves as well as other such inmates who are present therein. The fact that two “rival gangs”, as per the contention of the Respondents, chose to have an altercation and that the victim participated in the same, would not absolve the authorities of their bounden responsibility to carry out their duty of ensuring the safety and security of prisoners. This Court is of the view that part of the duties of the State is to ensure that such “gangs” are not permitted to proliferate in jails and certainly to ensure that such gang rivalries are not permitted to come to the fore. The fact that, in the present case, such an altercation has transpired and that the two “rival gangs” have had access to weapons or tools by which they have been able to cause injuries to each other, leading to the death of the deceased, does not speak highly of the manner in which the jail authorities have dispensed their duties.

57. This Court also takes note of the fact that the Delhi Government had, sometime in late 2024, proposed an amendment to the Delhi Prison Rules, which had provided a compensation of Rs. 7.[5] Lakhs to the next of kin or legal heirs of the Prisoners who suffered an unnatural death. The said scheme set out a “no fault liability” compensation scheme for persons who suffered unnatural deaths in custody, including for those who died as a result of a quarrel among prisoners.

58. Though the said scheme is not notified, it is apparent that the said scheme, following the theme of victimology, recognised the State‟s responsibility for the provision of compensation to persons affected by the unnatural death of those in custody.

59. These aspects, coupled with the NHRC record, which seems to suggest that there was some delinquency on the part of the Jail personnel in the demise of the Petitioner‟s son, would also lead this Court to conclude that the State is vicariously responsible for the unfortunate death of the deceased and thereby too, liable to pay CONCLUSION:

60. Apropos the discussion and analysis hereinbefore, this Court concludes as follows:

1. Loss of life Rs. 3 Lakhs Rs. 10 Lakhs ***** …”

Scheme. Reading Clause 4 of the Scheme in this manner would mean that the victim can be said to “have been compensated for the loss and injury” from some other scheme when he has received compensation equivalent to or more than what is the minimum stipulated in the Schedule to the Scheme. Such an applicant would not be entitled to receive any compensation under the present Scheme. However, where the amount received is less than the minimum stipulated under the Schedule, it cannot be said that he has been compensated for the loss and injury and the concerned authority shall grant appropriate compensation under the Scheme but taking into account the amount of compensation already received by the victim/dependent.”

I. The Court directs the DSLSA to conduct a fact-finding exercise to evaluate the actual physical or monetary dependence that the substituted Petitioners may have had on the Victim, to determine the loss or injury that they may have suffered.

61. It is made clear that the DSLSA will undertake the exercise only for the purpose of determining further compensation, i.e. in addition to the Two Lakhs already directed to be paid to the Petitioners.

62. With the aforesaid directions, while the present petition, along with pending application(s), if any, is disposed of, this Court directs that the matter be listed after twelve weeks to inform the Court of the progress in respect of the directions given hereinabove.

HARISH VAIDYANATHAN SHANKAR, J. JUNE 12, 2025/ sm/va