It may be worthwhile to see that under Rule 414, the
wages that would form the fund are the wages earned by the
prisoners. Hence, those would be the wages earned by all the
prisoners, unless specifically exempted forming a separate class.
The contribution to the fund is, therefore, not from the wages of
only specified prisoners. There can be no discrimination between
the types of prisoners to bring them within the purview of the rule
or exempt them therefrom, unless the prisoners themselves
belong to a class which should not contribute their wages. There
is no such classification for the prisoners who are required to
contribute a part of their wages earned by them. There cannot
be. A distinction is sought to be made out not between two
prisoners of different classes, but between the victims. Hence,
even though all prisoners must contribute, only the victims of
some of them are stated to be deserving of the compensation. It
is, therefore, argued that since a NDPS convict “has no victim”,
none can be paid compensation and, therefore, no compensation
can be deducted. Once it is seen that the doctrine of victimology
would apply to the State at large, this narrow interpretation must
be rejected.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITIONS NO.10/2012, 21 AND 35/2013
CRIMINAL WRIT PETITION NO.10/2012
Bhakta Bahadur, V/s Inspector General of Prisons
Coram: F.M. REIS, JJ.
Citation;2015 ALLMR(cri)1945
Date of pronouncing Judgment : 27/01/2014
J U D G M E N T :- (PER SMT. R.S. DALVI, J.)
These writ petitions arise upon letters of three
prisoners who have been convicted under the Narcotic Drugs and
Psychotropic Substances Act, 1985 (NDPS Act) and are serving
their sentences. They challenge the deduction of 50% of the
wages earned by them which have been appropriated to the
Common Victims Compensation Fund, which has been created
under Section 36-A of the Prisons Act, 1894, as amended by the
3
Prisons
(Goa Amendment) Act, 2005
WPCR10-12,21,-35-13
and the Rules framed
thereunder being the Goa Prisons Rules, 2006.
2.
One Tommy Thomas who was convicted under the
NDPS Act was allowed the entire of the wages earned by him,
without deducting any amount towards the Common Victims
Compensation Fund. Thereafter, another prisoner also convicted
under the NDPS Act, Basudev Joshi, was not allowed the entire
wages. Fifty per cent of his wages came to be deducted under the
aforesaid provision of the Act and the Rules. An order came to
be passed by N.A. Britto, J., as he then was, on 24 th July, 2009,
holding that the prisoners of the same class cannot be so
discriminated. Consequently, the convict Basudev Joshi was
directed to be paid the entire of his wages. The learned Judge,
inter alia, observed that until the Inspector General of Prisons
reconsiders the order dated 11 th November, 2008 under which the
contribution to the fund was to be made or it is successfully
challenged, the prisoners convicted under the NDPS Act would be
entitled to their entire wages.
3.
Fortified by the said order, three prisoners who are
the petitioners in the above writ petitions, came to write letters for
being granted the entire of their wages or for being refunded 50%
of the wages deducted by the prison authorities. These letters
have been treated as writ petitions. The Inspector General of
Prisons has passed another order dated 12 th August, 2011, setting
out the aforesaid section of the Prisoners Act, as also relevant
Prisons Rules which make it obligatory for all prisoners to
contribute 50% share of their wages to the Common Victims
Compensation Fund.
The order shows that there is no
discrimination between the prisoners for making deductions or
exempting them from deductions towards the Common Victims
Compensation Fund and that all prisoners, including the prisoners
convicted under the NDPS Act, would have victims who would be
the society at large. Consequently, the earlier memorandum was
withdrawn
by the Inspector General of Prisons to apply
prospectively. The said order dated 12 th August, 2011 is not
challenged.
4.
The petitioners' contention is that the prison
authorities must act as per the aforesaid Section 36-A and the
relevant rules and that they have not acted in consonance
therewith. The petitioners have, therefore, sought to enforce the
aforesaid provisions by interpreting them.
5.
It will be apposite to set out the aforesaid provisions.
Section 36-A of the Prisons Act, 1894, as amended by the Prisons
Act, 2005, runs thus :
“36-A. Creation of fund for compensation.-
The prisoners shall be paid wages for the
employment provided to them at such rate as
may be prescribed from time to time. An
amount of fifty per cent of the total amount
of wages earned by the prisoner in a month
shall be kept and deposited in a separate
common fund which shall be exclusively used
for the payment of compensation to
the
deserving victims or his/her family of the
offence the commission of which entailed the
sentence of imprisonment to the prisoner. The
account of fund shall be maintained by the
Superintendent of Jail in such form and in
such manner as may be prescribed. The rate
of compensation to be paid to the victims or
his/her family shall be fixed by a committee
consisting of such persons as may be prescribed.”
6.
Chapter XXI of the Prisons Rules framed under the
aforesaid Act on 13th October, 2006 and published in the Official
Gazette,
Government
of
Goa
(Extraordinary),
is
titled
“Compensation to the Victim (or his family) of the Prisoner's
Offence”. Rules 414 to 419, deal with the provisions under the
chapter of compensation, the relevant parts of which run thus :
“CHAPTER XXI
Compensation to the Victim (or his
Family) or Prisoner's Offence.
414. Common Victims Compensation
Fund. - A fund known as “Common Victims
Compensation Fund” shall be created for jail
from the part of wages earned by prisoners for
the purpose of giving compensation to the
deserving victim or his/her family of the
prisoner's offence.
415. Constitution of Committee and its
meeting.- (1) ...
(2) ...
(3) ...
(4) The amount of compensation shall
be fixed by the Committee at its meetings as
per instructions issued by the Government in
this behalf, from time to time and reasons shall
be recorded in writing by the Committee for
fixing such compensation and arrange payment
of compensation amount to the victim or to his
family member, as the case may be. If there are
more than one victim or his legal heirs, the
Committee shall also determine distribution of
compensation amount proportionately amongst
the victims or their legal heirs, as the case may
be.
(5) For determination of deserving
victims as provided in section 36A of the Act,
the Government shall issue instructions from
time to time.
416. Management of wages and Common
victims Compensation Fund. - (1) Fifty percent
of the wages earned by a prisoner in a month,
under the provisions of sub-rule (5) of rule 210
shall be deposited in the Common Victims
Compensation Fund and the remaining fifty
percent amount may be payable to the prisoner
subject to deduction, if any.
(2) The amount received by the
prisoners, as wages under these rules, shall be
distributed in the following manner :-
(i) Fifty percent of the wages earned by
the prisoners in a month shall be deposited in
the Common Victims Compensation Fund.
Any interest credited against the Common
Victims Compensation Fund shall be added to
the fund.
(ii) The fund shall be controlled and
operated jointly by the Inspector General and
the Superintendent.
(iii) The amount of Common Victims
Compensation Fund shall be deposited in a
personal joint deposit account opened in any
Nationalized bank in the name of Inspector
General and the Superintendent of the Jail
concerned.
(iv) Such amount of compensation from
the Common Victims Compensation Fund
shall be paid once to a deserving victim of the
offence and in the case of the death of the
deserving victim, to the family member of the
victim as decided by the Committee.
418. Payment to victim.- (1) ...
(2) Subject to the provisions of rule 416,
compensation shall be paid from the Common
Victims Compensation Fund by way of a
cheque signed by the Inspector general and the
Superintendent jointly or in the case of
payment made by remittances through Post
Office, the postal money order receipt shall be
kept with the voucher.”
7.
The aforesaid provision in the Prisons Act made by
way of amendment is with the object of considering the aspect of
victimology.
The State, as a welfare State, is jurisprudentially
enjoined to consider and give due weightage to victimology. This
would be victim protection, victim representation and victim
rehabilitation. It is to the latter of the aforesaid ends that the
common fund is sought to be created to compensate the victims.
The compensation is to be paid to the victims of the offence
committed by the prisoners.
It is required to be paid by the
prisoners. Consequently, the word “prisoners” must read as “all
prisoners” or “every prisoner”. If the victim is dead, it is to be paid
to his/her family. It is to be paid once. It is to be paid after
ascertaining the deservance of the victim.
8.
The expression “victim” is not defined in the Prisons
Act. The definition of “victim” in the Code of Criminal Procedure
shall, therefore, have to be relied upon. The definition of “victim”
in Section 2(wa) of the Cr.P.C., has itself been provided in the
Amending Act 5 of 2009, amending the Code of Criminal
Procedure, 1973.
This was also in aid of the doctrine of
victimology. The victims, who have no voice or representation in
our criminal justice system, were first given such right of
representation in appeals to be filed against acquittal or conviction
for a lesser offence or for imposing inadequate compensation under
the proviso to section 372 of the Cr.P.C. 1973 in Chapter XXIX,
relating to Appeals which itself was brought into force by the
amending Act 5 of 2009. [see Balasaheb Rangnath Khade vs. The
State of Maharashtra & ors., (Cri. Appeal No. 991/2011) 2013 ALL
MR (Cri) 1153 FB].
9.
The “victim” under the Cr.P.C. is defined as under :
“ 'victim' means a person who has suffered any
loss or injury caused by reason of the act or
omission for which the accused person has been
charged and the expression 'victim' includes his or
her guardian or legal heirs”.
Consequently, to appeal against acquittal or to appeal an order of
conviction for a lesser offence or to appeal the imposing of
inadequate compensation, a person who has suffered loss or injury
caused by reason of the act or omission of the accused would be
a victim.
10.
It is contended on behalf of the petitioners that the
NDPS prisoners form a separate class, having no tangible victim
relatable to them. It is argued that since there is no identifiable
victim of any prisoner or accused who is convicted under the
NDPS Act, the person who has suffered any loss or injury by
reason of the act of the accused is not shown and hence, no
person and upon his death, his/her legal representatives can claim
to be a victim.
11.
It may be mentioned that if this analogy is accepted,
there would be no victim even of any offence under the Prevention
of Corruption Act, 1988 (PC Act), just as much as the NDPS Act.
It would be rather shallow and myopic for a Court to accept such a
contention. It is the entire country which suffers economically and
financially for the case of acts and omissions of corrupted persons.
It is the society, at large, which would suffer, with kinetic effect,
of the acts of addicted person or persons convicted under the
NDPS Act. In the cases of NDPS convicts their own families also
may have been victimized by their acts and omissions. It is well
accepted that the offence under the NDPS Act is taken to be so
serious as to require a strict minimum sentence and fine and in
which provisions of bail are applied more stringently than the
offences under the general criminal law.
A similar
analogy,
therefore, must apply to who is victimised by such crime.
12.
It may be mentioned that whereas in the case of an
offence against an individual, be it murder, rape, dacoity or any
other, the person who is victimized may be in the singular, in the
case of offences under the NDPS Act, the P.C. Act, etc., the entire
society and the country is victimized. It calls for national character
to be uplifted, not individual appeasement, protection or shelter.
The State would have a more uphill task in wiping off the effects
of victimization to a large section of the society to provide them
succour or relief by way of compensation.
Consequently, the
victims considered under the aforesaid provisions are not only
specifically identifiable persons, being the person who has suffered
the offence, but the society at large, including complainant or
family members of such person.
13.
Section 357 of the Cr.P.C. allows and enjoins the
Court to grant compensation at the time of imposing of sentence,
with
or without fine. That, of course, is the compensation
contemplated to be granted judicially. Aside from such a grant, a
welfare State in the civilized world of today would be required to
act for reformation of the prisoners and rehabilitation of victims.
Various schemes may be taken up by the State to that end. Once
such scheme is payment of compensation to victims from the
wages earned by the prisoners. For that purpose, a separate fund
has to be created. This fund is created by crediting 50% of the
wages earned by all the prisoners, in addition to the compensation
that may or may not have been granted by the Court at the time of
sentencing the accused under Section 357 of the Cr.P.C..
14.
It is the contention on behalf of the petitioners that
the expression “victim of his/her family of the prisoner’s
offence”, the prisoner being in singular, would essentially show
the direct connection between the victim and the prisoner and
hence the victim must be identified for being
paid the
compensation. It is, therefore, argued that a NDPS convict has no
victim, since a specific person from the society cannot be
identified as his victim and hence, there is no victim of that
prisoner’s offence. It is upon such analogy that in the earlier case
of Tommy Thomas which came to be followed in the case of
Basudev Joshi, the NDPS convicts were granted their full wages,
without deduction for the victim and towards the Common
Victim Compensation Fund. It is, therefore, argued that
reparation to the individual victim is a must and payment
generally to the fund or generally to the society is not
contemplated under the Act or the Rules, because payment to the
victim by the committee set up under the Rules must be on case
to case basis. However, there may be a case of an association of
persons, or an organization requiring funds for undertaking
awareness activities or for work towards persons affected by the
NDPS offences.
15.
It is also argued on behalf of the petitioners that
requirement of seeing deservance of the victim under Rule 415(4)
for grant of compensation with reasons, is also a pointer to the
fact that there must be a specified victim relatable to a specified
prisoner. It is also argued that requirement of making out
remittances through Post Office, postal money order receipt with
the voucher, under Rule 418(2) is also a similar pointer to that
effect.
16.
It is not correct to suggest that the reasons to be
given must only be relatable to a particular person qua a
particular prisoner. The reason that an organization, an
association of persons or otherwise who may work towards the
amelioration of the effects of the NDPS offences would be a good
enough reason to make them deserving cases to obtain
compensation if the State worked to that end. Even awareness
programmes in the society may fall within such genre of victims.
17.
Similarly, a cheque required to be signed by the
Inspector General of Prisons and the Superintendent may be
made out not only in the name of any particular individual,
but also an
association of persons or an
organization. In
fact the provisions of Rule 415(5) would show otherwise.
Under
that
rule, the
Government is entitled to issue
instructions from time to time for determination of who are the
15
WPCR10-12,21,-35-13
deserving victims. The Government may well issue instructions
in that behalf showing specified association of persons, or
organizations working towards the rehabilitation of victims of
drug crimes to be granted the compensation for that case which
would be usefully applied for amelioration of the society as the
victim of the NDPC offences. Upon seeing the deservance they
would be paid the compensation once by a cheque or by money
order from the Common Victim Compensation Fund, consisting
of 50% of the wages of all prisoners of the jail and interest
thereon, the account of which would have to be kept and which
fund would be not only operated, but controlled generally by the
Inspector General of Prisons and the Superintendent of Prisons.
18.
It may be worthwhile to see that under Rule 414, the
wages that would form the fund are the wages earned by the
prisoners. Hence, those would be the wages earned by all the
prisoners, unless specifically exempted forming a separate class.
The contribution to the fund is, therefore, not from the wages of
only specified prisoners. There can be no discrimination between
the types of prisoners to bring them within the purview of the rule
or exempt them therefrom, unless the prisoners themselves
belong to a class which should not contribute their wages. There
is no such classification for the prisoners who are required to
contribute a part of their wages earned by them. There cannot
be. A distinction is sought to be made out not between two
prisoners of different classes, but between the victims. Hence,
even though all prisoners must contribute, only the victims of
some of them are stated to be deserving of the compensation. It
is, therefore, argued that since a NDPS convict “has no victim”,
none can be paid compensation and, therefore, no compensation
can be deducted. Once it is seen that the doctrine of victimology
would apply to the State at large, this narrow interpretation must
be rejected.
19.
Rule 414 forms two parts. It relates to contribution
from all prisoners (in plural). It relates to victim of a particular
prisoner (in singular). The contribution has to be made by all.
The payments would be made to specified deserving victims, as
identified by the Committee and as per instructions issued by the
Government from time to time. Consequently, it does not matter
that the words “victim of the prisoner's offence”, relate to a
specific victim of that offence.
20.
It is also argued that under Section 357A of the Code
of Criminal Code, 1973, a victim compensation scheme is
envisaged. Section 357A which has been incorporated under the
Amendment Act 5 of 2009 is also required to be applied in a
different field. It enjoins the State Government to prepare a
scheme for compensating victims who require rehabilitation, as
recommended by the District Legal Service Authority or the
State Legal Service Authority, even in case of an acquittal or
discharge, or where the offender is not traced or identified. That
scheme has nothing to do with the contribution from the
prisoners. The State Government alone would have to take up
that financial burden, aside from taking steps towards
victimology by a welfare State. It does not enhance the
interpretation of the Prisoners Act or the Prisons Rules. Section
357A may be an alternate means of providing compensation, but
it holds a different field. It would be seen by the Prisons
Authorities as per instructions issued from time to time under
Rule 415(5) of the aforesaid rules. Similarly, the present day
prison reforms may require schemes for correction of drug
addicted persons, drug de-addiction centers, rehabilitation of drug
addicts, etc.. The State or any organisation may undertake such
schemes. However, that also is a part of a separate field of
endeavour.
Hence, though such prisoners may require to be
reformed or need their savings from their earnings, it cannot be
allowed to the exclusion of the victims of their offence only
because those victims are not directly identifiable.
reformation of prisoners must be
The
commensurate with
rehabilitation, relief and reparation schemes for victims.
It
cannot be from the contribution of their wages which must go to
their victims and not themselves.
21.
It is argued on behalf of the petitioners that the
petitioners pay debt to the society by their sentensing, as also a
fine which is rather strict. Hence, they contend that no further
burden be placed upon them.
Serving the sentence is upon
conviction which is when a case of committing an offence as
grave as under the NDPS Act beyond reasonable doubt is made
out against an accused. That payment of debt is for the remorse
that must follow the act of the offender which has been proved
beyond reasonable doubt. That does not, in any manner, lend any
assistance to the victims of crime. Of course, a prisoner himself
would require to earn and save the earnings for his future when
he would come out into the society. It is to that end that the
prison reforms require payment to be made to the prisoners
though rigorous imprisonment would have been ordered at the
time of sentensing. The payment of fine is essentially for
defraying cost of the exchequer in prosecuting the crimes. Unless
it is specifically ordered under Section 357(1)(a) of the Cr.P.C., it
would not form part of the compensation to be granted to the
victim.
22.
It is also argued on behalf of the petitioners that the
petitioners would not know how the contribution made by them
would be defrayed. That is not an aspect for consideration at the
time of contribution to the fund. It is only when the funds are
defrayed that the petitioners or for that matter, any prisoner may
challenge such defraying. The petitioner’s wife or children may
themselves be victims of his acts and omissions. They may have
suffered gross loss and injury as also ruin. Should they apply as
victims of such prisoner's offence, the committee would consider
their case of victimization on merits, on case to case basis. The
prisoners themselves cannot be victims of their own acts. Fifty
percent of their amount, therefore, cannot go to them personally
even if in a given case it will have to go to their wives or children
as true victims of their acts and omissions.
23.
It is, therefore, rightly argued on behalf of the
respondents that all prisoners would have to be treated equally.
Otherwise, there would be NDPS prisoners and non-NDPS
prisoners. The victims who are to be paid, are only deserving
victims and not all victims. The parameters of such deserving
would be considered by the committee.
24.
The petitioners have not challenged the aforesaid
sections
or rules. The petitioners have also not challenged the
order issued by the Director of Prisons dated 12 th August, 2011.
The Rules and the Order, therefore, stand. The petitioners only
contend that the rule is not read correctly by the State. That
contention is wholly misconceived.
26.
Consequently, the petitions are devoid of merit and
are, accordingly, dismissed. Rule is discharged.
F.M. REIS, J.
ssm.
SMT. R.S. DALVI, J.
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