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2020 Supreme(Ker) 891
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Bechu Kurian Thomas, J.
District Collector, Alappuzha – Petitioner
Versus
District Legal Service Authority Alappuzha And Ors. – Respondents
WP(C).No.7250 OF 2014(E)
Decided On : 22-12-2020
Advocate Appeared:
For the Petitioner: Sri.B.Vinod, Sr.Government Pleader
For the Respondent: Sri.K.S.Aneesh, Adv., Leah Rachel Ninan And G. Keerthivas, Amicus Curiae
Important points:
When an application is made by a victim of a crime that occurred prior to the coming into force of Section 357A(4) Cr.P.C., a prospective benefit is given, taking into reckoning an antecedent fact. Adopting such an interpretation does not make the statute or the provision retrospective in operation. It only confers prospective benefits, in certain cases, to even antecedent facts.
Headnote:
Criminal Procedure Code- Section 357A(4) -The victims under Section 357A(4) of the Cr.P.C. are entitled to claim compensation for incidents that occurred even prior to the coming into force of the said provision- By giving the benefit to victims under Section 357A(4) Cr.P.C., for crimes that occurred prior to 31.12.2009, the statutory provision is not given retrospective effect, and instead a prospective benefit is given based on an antecedent fact
Statement of facts:
The victim compensation scheme under Section 357A(4) of Cr.P.C. and its applicability. Is the provision retrospective or prospective in its application? To paraphrase the query: Would the victim, of a crime that occurred prior to 31.12.2009, be entitled to claim compensation under Section 357A(4) of the Cr. P.C.
Finding of the court:
If a limit of time of 180 days from the occurrence of crime is stipulated for preferring an application under Section 357A(4), it will only defeat the provision. The restriction of 180 days since the date of occurrence of the crime for preferring applications goes against the spirit of Section 357A(4) Cr.P.C. It is certainly not the intention of the legislature to deny claims for compensation from victims when the offender has not been identified or traced within a period of 180 days. However, the said clause does not apply in the instant case though the aforesaid is a matter for the State to contemplate and bring in appropriate modifications.
Result: Writ petition is dismissed
JUDGMENT :
A question of seminal importance has arisen in this case. The query raised relates to the victim compensation scheme under Section 357A(4) of Cr.P.C. and its applicability. Is the provision retrospective or prospective in its application? To paraphrase the query: Would the victim, of a crime that occurred prior to 31.12.2009, be entitled to claim compensation under Section 357A(4) of the Cr. P.C.
2. The facts, though not relevant to be narrated in detail, is in a nutshell as follows:
Respondents 2 to 4 are the legal heirs of one late Sri.Sivadas. In a motor vehicle accident that took place on 26-03-2008, Sri. Sivadas succumbed to his injuries. Though a crime was registered by the Alappuzha Traffic Police, the accused could not be identified or traced and the trial has not taken place. In 2013, the legal heirs of late Sivadas applied to the District Legal Services Authority, Alappuzha, seeking compensation from the State under Section 357A(4) of the Code of Criminal Procedure, 1973 (for brevity 'the Cr.P.C').
3. Pursuant to the application, an enquiry, as contemplated under Section 357A(5) Cr.P.C, was conducted through the Additional District Judge, Alappuzha, who was appointed as the Enquiry Officer. The enquiry report was submitted on 12-09-2013. The report revealed that the applicants are the legal heirs of late Sivadas and that at the time of death he was aged 52 years and a casual labourer. It further stated that considering the circumstances, an amount of Rs.3,03,000/-(Rupees Three lakhs three thousand only) was sufficient compensation that could be awarded to the dependents of late Sri.Sivadas. On the above basis, the 1st respondent by Ext.P1 order, directed the State of Kerala to pay an amount of Rs.3,03,000/-to the dependents of late Sivadas under Section 357A(5) of the Cr.P.C. Ext.P1 is under challenge.
4. On account of non-representation for the respondents, this Court had appointed Adv. Leah Rachel Ninan to assist the respondents and taking note of the important question involved and its far-reaching effect, this Court also appointed Adv. Keerthivas Giri as an Amicus Curiae. However, before completion of the hearing in the case, counsel for the respondents entered appearance.
5. Arguments were addressed by Adv.B.Vinod, the learned Senior Government Pleader on behalf of the petitioner, Adv. Leah Rachel Ninan, as appointed by the Court, as well as Adv. K.S.Aneesh on behalf of respondents 2 to 4, and Adv. Keerthivas Giri, the learned Amicus Curiae.
6. Adv. B Vinod, the learned Senior Government Pleader, passionately argued that the direction to the State to pay compensation to the dependents of a victim under Section 357A(4)&(5) of the Cr.P.C., for a crime that occurred on 26-03-2008, relying upon an amended provision, brought into effect only on 31.12.2009, and based on an application of the year 2013, is wholly unfair and contrary to the statutory prescription. He also contended that Section 357A(4) Cr.P.C cannot be given a retrospective operation as the financial implication of such an interpretation would be so enormous upon the Government, that it will crumble the economic planning of the State.
7. Adv. B Vinod argued with persuasive skill and pointed out that Section 357A Cr.P.C. is a substantive law and unless the statute by express or necessary intendment stipulates that it will have retrospective operation, it can only be interpreted as having a prospective operation. It was also argued that the enquiry, contemplated under Section 357A Cr.P.C. is in the nature of evidence to be adduced which itself is indicative of its prospective application, apart from the words used which takes in only the immediate possibility of compensation payable and the future compensation, thereby clearly intending that the provision has no retrospective application.
8. According to the learned Senior Government Pleader, the express exclusion of words that cover past transactions is a clear indication that the provision has prospe
