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IN THE HIGH COURT OF KERALA AT ERNAKULAM
KAUSER EDAPPAGATH, J.
XXXXXXXXXX – Petitioner
Versus
State of Kerala – Respondent
Crl. M.C. Nos. 3531, 8718 of 2022
Decided On : 16-08-2023
Code of Criminal Procedure, 1973 - Section 482, 357A, (3) - Protection of Children from Sexual Offences Act, 2012 - Sections 3(b), 4, 5(i), 6, 33(8) - Indian Penal Code, 1860 - Sections 376 - Juvenile Justice (Care and Protection of Children) Act - Section 75, 23 - Protection of Children from Sexual Offences Rules, 2020 - Rule 9(2) - Constitution of India, 1950 - Articles 226 and 227 - Sexual assault - Compensation - Power and jurisdiction of Kerala State Legal Services Authority (KeLSA)/District Legal Services Authority (DLSA) to award compensation to victims under Kerala Victim Compensation Scheme, 2017 without recommendation from Court falls for consideration in these petitions.
Findings of the Court:
Impugned orders passed by KeLSA are not amenable to jurisdiction vested with Court under Section 482 of Cr.P.C. - Court can very well exercise its power and jurisdiction under Articles 226 and 227 of Constitution to quash impugned orders, which are found to be legally unsustainable - It is settled law that nomenclature under which petition is filed is not quite relevant and that does not debar Court from exercising its jurisdiction, which otherwise it possesses - Impugned orders are set aside - KeLSA/DLSAs concerned are directed to grant awarded compensation to petitioners forthwith.
Result: Cr.M.C. disposed of.
Key Points: - The impugned KeLSA orders were set aside and DLSA/KelSA were directed to grant awarded compensation forthwith (!) (!) . - The judgment asserts that DLSA/SLSA can award compensation directly under Chapter II of the amended Kerala Victim Compensation Scheme, 2017 (amended 2021) even without a Court recommendation, for offences covered by Chapter II (!) (!) (!) . - It clarifies that for cases with a trial and court recommendation, the Court’s recommendation under Section 357A(2) or (3) guides the SLSA/DLSA in determining quantum (!) (!) . - For cases where no trial occurs or the accused is untraced, victims may apply under Section 357A(4) to SLSA/DLSA, which will enquire and award compensation (!) (!) (!) . - Specific provisions and interplay with POCSO: Special Courts under POCSO Act can direct payment of compensation under Section 33(8) and Rule 9, which is separate from the Kerala Scheme but related to child victims’ rehabilitation (!) (!) (!) . - The State Government must allocate funds to the Victim Compensation Fund and ensure disbursement by KeLSA/DLSA; directives issued to implement integration of IT systems to share FIR copies with KeLSA/DLSA for interim compensation (!) (!) (!) . - The judgment emphasizes a mandatory duty on courts and authorities to apply mind and record reasons when awarding compensation, citing statutory duties under 357A and POCSO provisions (!) (!) (!) (!) .
ORDER :
1. The power and jurisdiction of the Kerala State Legal Services Authority (KeLSA)/District Legal Services Authority (DLSA) to award compensation to the victims under the Kerala Victim Compensation Scheme, 2017(As amended in 2021), without the recommendation from the Court falls for consideration in these petitions filed under Section 482 of the Code of Criminal Procedure Code, 1973 (for short Cr.P.C.).
Facts briefly
2. Two sexual assault victims who suffered adverse orders at the hands of KeLSA rejecting their applications for victim compensation are the petitioners.
3. The petitioner in Crl. M.C. No. 3531/2022 was the victim in SC No. 1232/2017 on the file of the First Additional Sessions Court, Kollam. The accused was none other than her father. The offences alleged were under Sections 376 of IPC, Sections 3(b), 4, 5 (i) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 (for short, POCSO Act) and Section 75 of the Juvenile Justice (Care and Protection of Children) Act (for short, the JJ Act). The allegation was that the accused sexually assaulted the victim, aged 4½ years, by inserting his finger and buds into her anus on many occasions prior to 11/7/2017 at their house. After a fullfledged trial, the learned Additional Sessions Judge convicted and sentenced the accused under Sections 3(b) r/w 4 and 5 (i) r/w 6 of the POCSO Act and Section 75 of the JJ Act. Apart from the substantive sentence, a total fine amount of Rs. 75,000/- was imposed. However, there was no recommendation to pay compensation as contemplated under Section 357A (3) of Cr.P.C. or Rule 9(2) of the Protection of Children from Sexual Offences Rules, 2020 (for short, POCSO Rules) r/w Section 33(8) of the POCSO Act.
4. The petitioner in Crl. M.C No. 8718/2022 was the mother of the victim in SC No. 428/2013 on the file of the Special Court for Trial of Offences under POCSO Act and Children's Court (Additional Sessions Court -I), Alappuzha. The accused was the neighbor of the victim girl, aged 13 years. The offences alleged were under Sections 363 and 376 of IPC, Section 5(k) r/w 6 of the POCSO Act and Section 23 of the JJ Act. The allegation was that on 24/1/2013 at 02.30 p.m. the accused committed rape on the victim without her consent at his house. During the pendency of the case, the accused expired. Therefore, the learned Sessions Judge closed the case as the charge against the accused was abated. Here also, there was no recommendation to pay compensation as contemplated under Section 357A (3) of Cr.P.C. or Rule 9(1) of the PCOSO Rules r/w Section 33(8) of the POCSO Act.
5. After the disposal of the Sessions Cases mentioned above, the victims in both cases preferred applications seeking compensation under the Kerala Victim Compensation Scheme, 2017 (As amended in 2021) at the jurisdictional DLSA. The DLSA allowed the applications and awarded a compensation of Rs. 6,00,000/- to the petitioner in Crl. M.C. No. 8718/2022 and Rs. 10,50,000/- to the petitioner in Crl. M.C. No. 3531/2022. The DLSA thereafter forwarded the orders to KeLSA with a request for allotment of the compensation awarded to the victims. The KeLSA, however, returned the orders to DLSA, holding that, without a recommendation from the Court, DLSA cannot award compensation. Those orders are under challenge in these Crl.M.Cs.
6. This court suo moto impleaded KeLSA as the 2nd respondent. This court also appointed Adv. K.K. Dheerendrakrishnan as Amicus Curiae to assist the court.
7. I have heard Sri. P. Ramesh, the learned counsel for the petitioners; Sri. P. Narayanan, the learned Additional Public Prosecutor, Sri. Roshen D. Alexander, the learned counsel for KeLSA and Sri. K.K. Dheerendrakrishnan, the learned Amicus Curiae.
Rival Contentions
8. The learned counsel for the petitioners submitted that the Additional Sessions Court while disposing of both cases should have recommended compensation as provided under Section 357A (3) of Cr.P.C. and the petitioners who are otherwise ent
Section 357A of Cr.P.C. is extracted victim compensation scheme.
Section 11 of POCSO Act deals with offence of sexual harassment.
Rule 9 deals with grant of compensation.
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