Law Web: Delhi High Court directs filing of income affidavit of convict, Victim Impact Report for grant of compensation to victim

Victimology

156. Victims are unfortunately the forgotten people in the criminal justice delivery system. Victims are the worst sufferers. Victims‟ family is ruined particularly in cases of death and grievous bodily injuries. This is apart from the factors like loss of reputation, humiliation, etc. The Court has to take into consideration the effect of the offence on the victim's family even though human life cannot be restored but then monetary compensation will at least provide some solace.

157. The criminal justice system is meant for doing justice to all - the accused, the society and the victim.

158. Justice remains incomplete without adequate compensation to the victim. Justice can be complete only when the victim is also compensated.

Sections 357 & 357A of CrPC

159. Section 357 CrPC empowers the Court to award compensation to victims who have suffered by the action of the accused.

160. The object of the Section 357(3) CrPC is to provide compensation to the victims who have suffered loss or injury by reason of the act of the accused. Mere punishment of the offender cannot give much solace to the family of the victim – civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread earner of the family.

161. Section 357 CrPC is intended to reassure the victim that he/she is not forgotten in the criminal justice system.

162. Section 357 CrPC is a constructive approach to crimes. It is indeed a step forward in our criminal justice system.

163. The power under Section 357 CrPC is not ancillary to other sentences but in addition thereto.

164. The power under Section 357 CrPC is to be exercised liberally to meet the ends of justice in a better way.

165. Section 357 CrPC confers a duty on the Court to apply its mind on the question of compensation in every criminal case.

166. The word „may‟ in Section 357(3) CrPC means „shall‟ and therefore, Section 357 CrPC is mandatory.

167. The Supreme Court in Ankush Shivaji Gaikwad (supra) has given directions that the Courts shall consider Section 357 CrPC in every criminal case and if the Court fails to make an order of compensation, it must furnish reasons.

Quantum of compensation

168. The amount of compensation is to be determined by the Court

depending upon gravity of offence, severity of mental and physical harm/injury suffered by the victim, damage/losses suffered by the victims and the capacity of the accused to pay. While determining the paying capacity of the accused, the Court has to take into consideration the present occupation and income of the accused. The accused can also be directed to pay monthly compensation out of his income.

Financial capacity of the accused

169. Before awarding compensation, the Trial Court is required to ascertain the financial capacity of the accused. This Court has formulated the format of an affidavit to be filed by the accused after his conviction to disclose his assets and income which is Annexure-A hereto.

Victim Impact Report

170. This Court has formulated the format of Victim Impact Report (VIR) to be filed by DSLSA in every criminal case after conviction. Victim Impact Report (VIR) shall disclose the impact of the crime on the victim. The format of the Victim Impact Report in respect of criminal cases, other than motor accident cases, is Annexure B-1. The format of Victim Impact Report in respect of motor accident cases is Annexure B-2.

Summary Inquiry

171. A summary inquiry is necessary to ascertain the impact of crime on the victim, the expenses incurred on prosecution as well as the paying capacity of the accused.

172. This Court is of the view that the summary inquiry be conducted by Delhi State Legal Services Authority (DSLSA) considering that DSLSA is conducting similar inquiry under the Delhi Victim Compensation Scheme, 2018 and is well conversant with the manner of conducting the inquiry.

173. After the conviction of the accused, the Trial Court shall direct the accused to file the affidavit of his assets and income in the format of Annexure-A within 10 days.

174. After the conviction of the accused, the Court shall also direct the State to disclose the expenses incurred on prosecution on affidavit along with the supporting documents within 30 days.

175. Upon receipt of the affidavit of the accused, the Trial Court shall immediately send the copy of the judgment and the affidavit of the accused in the format of Annexure-A and the documents filed with the affidavit to DSLSA.

176. Upon receipt of the judgment and the affidavit of the accused, DSLSA shall conduct a summary inquiry to compute the loss suffered by the victims and the paying capacity of the accused and shall submit the Victim Impact Report containing their recommendations to the Court within 30 days. Delhi State Legal Services Authority shall seek the necessary assistance in conducting the inquiry from SDM concerned, SHO concerned and/or prosecution who shall provide the necessary assistance upon being requested.

177. The Trial Court shall thereafter consider the Victim Impact Report of the DSLSA with respect to the impact of crime on the victims, paying capacity of the accused and expenditure incurred on the prosecution; and after hearing the parties including the victims of crime, the Court shall award the compensation to the victim(s) and cost of prosecution to the State, if the accused has the capacity to pay the same. The Court shall direct the accused to deposit the compensation with DSLSA whereupon DSLSA shall disburse the amount to the victims according to their Scheme.

178. If the accused does not have the capacity to pay the compensation or the compensation awarded against the accused is not adequate for rehabilitation of the victim, the Court shall invoke Section 357A CrPC to recommend the case to the Delhi State Legal Services Authority for award of compensation from the Victim Compensation Fund under the Delhi Victims Compensation Scheme, 2018.

179. In pending appeals/revisions against the order on sentence in which Section 357 CrPC has not been complied with, the Public Prosecutor shall file an application seeking a direction from the Court for directing the accused to file his affidavit of assets and income in the format of Annexure-A and directions to DSLSA to conduct a summary inquiry to ascertain the loss/damage suffered by the victim(s) and the paying capacity of the accused in the format of Annexures-B/B-1 in terms of Sections 357(4) CrPC in accordance with procedure mentioned hereinabove.

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 27th November, 2020

CRL.A. 352/2020

KARAN Vs STATE NCT OF DELHI

Coram: J.R. MIDHA, J. RAJNISH BHATNAGAR, J. BRIJESH SETHI, J.

Author: J.R. MIDHA, J.

1. The appellants have been convicted by the ld. Additional Sessions Judge under Sections 302/34 IPC. The ld. Addl. Sessions Judge reserved the judgment, after conclusion of the arguments, on 06th March, 2020 while being posted at Karkardooma Courts. On 13th March, 2020, ld. Addl. Sessions Judge was transferred from Karkardooma Courts to Rohini Courts and he pronounced the impugned judgments on 09th July, 2020. The appellants have challenged impugned judgments on the two grounds: first, that the ld. Addl. Sessions Judge ceased to have jurisdiction in respect of Karkardooma Courts matters upon being transferred with immediate effect vide transfer order No.10/G-I/Gaz.IA/DHC/2020 dated 13th March, 2020 and he was not empowered to deal with this case which was tried in the jurisdiction of Karkardooma Courts and second, that Note 2 appended to the transfer order dated 13th March, 2020 which empowered the judicial officers to pronounce the judgment/order in the reserved matters, was invalid. Reliance is placed on the Division Bench judgment of this Court in Jitender @ Kalle v. State, (2013) 196 DLT 103 (DB).

2. An important question of law has arisen for consideration before this Court with respect to the validity of Note 2 appended to the transfer order dated 13th March, 2020 and the correctness of the findings of Jitender‟s case relating to Note 2 in respect of similar transfer orders of the High Court. Note 2 empowered the transferred judicial officers to pronounce the judgments/orders in respect of the reserved matters within a period of 2-3 weeks after transfer took effect, notwithstanding such posting/transfer. Note 2 appended to the Transfer Order is reproduced herein under:

“Note 2. The judicial officers under transfer shall notify the cases in which they had reserved judgments/orders before relinquishing the charge of the court in terms of the posting/transfer order. The judicial officers shall pronounce judgments/orders in all such matters on the date fixed or maximum within a period of 2-3 weeks thereof, notwithstanding the posting/transfer. Date of pronouncement shall be notified in the cause list of the court to which the matter pertains as also of the court to which the judicial officer has been transferred and on the website.” (Emphasis Supplied) Brief facts

3. On 15th June, 2017 at about 09:00 PM, the appellants namely Karan, Sunny and „MB‟ a juvenile in conflict with law dragged Gulfam out of his house to a nearby park where Karan and Sunny caught hold of Gulfam and MB stabbed Gulfam in his back with a knife/chura. Gulfam suffered fatal injuries. FIR No. 465/2017 was registered at P.S. Nand Nagari and both the appellants were charged for offences under Sections 302/34 IPC. The chargesheet was committed to the ld. Addl. Sessions Judge Shahdara, vide order dated 23rd October, 2017 of the Chief Metropolitan Magistrate and both the accused persons faced the trial.

4. Sh. Jagdish Kumar, Addl. Sessions Judge, Karkardooma Courts heard the final arguments which concluded on 06th March, 2020 whereupon he reserved the judgment and the matter was listed for orders on 17th March, 2020.

5. Vide transfer notification/order bearing No. 10/G-I/Gaz.IA/DH/2020 dated 13th March, 2020, Sh. Jagdish Kumar was transferred from the post of Addl. Sessions Judge, Judge-04, Karkardooma Courts to Addl. Sessions Judge (Special Fast Track Court), North Rohini with immediate effect.

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6. On 09th July, 2020, Sh. Jagdish Kumar, Addl. Sessions Judge delivered the judgment while Presiding as Addl. Sessions Judge (Special Fast Track Court), North Rohini.

7. These appeals came up for hearing for first time on 16th July, 2020, when the Division Bench of this Court issued notice to the State. Considering that the grounds raised by the appellants had wide ramifications on the Criminal Justice System, the Division Bench of this Court issued notice to the High Court on administrative side. The Division Bench further appointed Mr. Vikas Pahwa, Senior Advocate to assist this Court as amicus curiae. The Division Bench further directed the ld. Addl. Sessions Judge to defer the hearing on sentence by two weeks.

8. On 10th August, 2020, Mr. Vikas Pahwa, ld. amicus curiae, submitted that this case is squarely covered by the law laid down by the Supreme Court in Gokaraju Rangaraju v. State of Andhra Pradesh, (1981) 3 SCC 132 in which the Supreme Court held that the judgment passed by a Sessions Judge would be legal and valid even if the appointment of the concerned Judge was subsequently declared to be invalid. The Supreme Court held that the de facto doctrine was well established. The Supreme Court considered the earlier cases on the de facto doctrine. The Supreme Court also noted that the de facto doctrine was recognized by British as well as American Courts. The Supreme Court further noted that Article 233A was incorporated by the 20th Amendment to the Constitution in 1966 to protect the judgments delivered by the Judges notwithstanding that their appointment, posting, promotion or transfer was not valid. The 20th Amendment was the consequence of the decision of the 5 Judge Bench judgment of Supreme Court in Chandra Mohan v. State of U.P., AIR 1966 SC 1987 in which the appointment of the

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District Judges was held to be invalid. The Supreme Court also noted that de facto doctrine is not a stranger to the Constitution or to the Parliament/Legislatures of the States. Article 71(2) of the Constitution protects the actions of the President and the Vice-President, even if their election was declared as void. Section 107(2) of the Representation of the People Act, 1951 protects the actions of the Members of Parliament, even if their election was declared as void.

9. Vide order dated 10th August, 2020, the Division Bench referred these matters to a larger Bench considering the important questions of law relating to the criminal justice system involved in these cases.

10. On 25th August, 2020, this matter was placed before the present Bench of three Judges. The brief notes of submissions were filed by Mr. Rajshekhar Rao, ld. counsel for Delhi High Court as well as ld. amicus curiae along with the relevant judgments. Learned counsel for the appellants submitted that he had gone through the submissions filed by the High Court as well as the ld. amicus curiae and he received instructions from the appellants to withdraw the objections to the jurisdiction of the ld. Addl. Sessions Judge and not to press these appeals but with liberty to challenge the conviction on merits after the passing of the order on sentence.

11. Mr. Rajshekhar Rao, ld. counsel for the Delhi High Court, Mr. Vikas Pahwa, ld. amicus curiae; and Mr. Rahul Mehra, ld. Standing counsel for the State submitted that the findings of the Division Bench relating to the Note 2 in Jitender‟s case (supra) affected the entire Criminal Justice System and, therefore, this Court should examine the validity of Note 2 issued by the High Court in these appeals. This Court, vide order dated 25th August, 2020, permitted the appellants to withdraw the objections to the jurisdiction of the

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ld. Addl. Sessions Judge and the bail applications were dismissed as infructuous. However, the appeals were kept pending to consider the legal issues raised by the High Court.

12. Mr. Kanhaiya Singhal, ld. counsel for the appellant Mr. Rajshekhar Rao, ld. counsel for the High Court; Mr. Rahul Mehra, ld. Standing Counsel and Mr. Vikas Pahwa, ld. amicus curiae, further submitted that there is a need to frame guidelines for award of compensation under Section 357 CrPC. It was submitted that the Courts below are not conducting any inquiry to ascertain the impact of crime on the victims and the paying capacity of the accused before awarding the compensation. It was further submitted that guidelines be framed in this regard. Prof. G.S. Bajpai, Professor of Criminology & Criminal Justice, National Law University, Delhi, who has done extensive research on Victimology has been appointed as amicus curiae to assist in this case in framing guidelines under Section 357 CrPC.

Submissions of Mr. Rajshekhar Rao, Ld. counsel for Delhi High Court

13. The ld. Addl. Sessions Judge was transferred from Karkardooma Courts to Rohini Courts by the High Court vide transfer order dated 13th March, 2020 and Note 2 appended to the transfer order dated 13th March, 2020 is under challenge. Note 2 appended to the Transfer Order dated 13th March, 2020, directs:

(i) The judicial officers under transfer shall notify the cases in which they had reserved judgments/orders before relinquishing the charge of the Court in terms of the posting/transfer order;

(ii) The Judicial Officers shall pronounce judgments/orders in all such matters on the date fixed or maximum within a period of 2-3 weeks;

(iii) Notwithstanding the posting/transfer, judgments/orders shall be

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pronounced within a maximum period of 2-3 weeks; and

(iv) Date of pronouncement shall be notified in the (a) cause list of the Court to which the matter pertains as also (b) the cause list of the Court to which the judicial officer has been transferred and (c) on the website.

14. In Jitender‟s case (supra), a similar Note 2 was appended to the transfer order of the ld. Addl. Sessions Judge which is reproduced hereunder:-

“Note 2. Judicial Officers under transfer shall notify the cases in which they had reserved Judgments/Orders before relinquishing the charge of the Court in terms of the postings/transfers order. The Judicial Officers shall pronounce the judgments/orders in all such matters within a period of 2-3 weeks, notwithstanding the posting/transfer.”

15. The aforesaid Note 2 was used for the first time in the transfer/posting order dated 13th May, 2009 on the recommendation dated 12th May, 2009 of the Administrative and General Supervision Committee of the High Court. As per minutes of the meeting of the Administrative and General Supervision Committee dated 12th May, 2009, the following recommendations were made:

“(a) It was decided that whenever postings/transfers of judicial officers are made, the order to be issued, shall be made effective 2-3 days after the date of issuance. (b)In the postings/transfers order it shall be directed that the judicial officers under transfer shall notify the cases in which they had reserved judgments/orders before relinquishing the charge of the court in terms of the postings/transfers order. The judicial officers shall be directed to pronounce judgments/orders in all such matters within a period of 2-3 weeks, notwithstanding the posting/transfer.”

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16. Note 2 appended to Transfer Order dated 08th February, 2010 has been used in various other transfer/posting orders of the Judicial Officers by this Court such as transfer orders dated 13th March, 2009; 17th July, 2009; 28th July, 2009; 15th October, 2009; 14th December, 2009; 04th February, 2010; 08th March, 2010; 26th April, 2010, 26th August, 2010; 09th September, 2010; 29th October, 2010; 15th December, 2010; 23rd December, 2010; 02nd February, 2011; 30th September, 2019; 19th November 2019; 04th December, 2019; 19th February, 2020. Various other versions similar to Note 2 have been used in the transfer/posting orders by this High Court for transfer of judicial officers of the subordinate judiciary.

Powers of the High Court

17. Article 227 of the Constitution empowers the High Court with the superintendence over all Courts and Tribunals throughout its territory. The power of superintendence under Article 227 includes the administrative as well as judicial superintendence i.e. the High Court can transfer a case by exercising its administrative power of superintendence or its judicial power of superintendence. Articles 227 and 235 of the Constitution empower the High Court to transfer the cases on administrative side. Article 235 of the Constitution empowers the High Court with control over subordinate Courts including posting and promotion of Judicial Officers.

18. Code of Criminal Procedure vests plenary powers in the High Court relating to the superintendence over the subordinate Courts including the appointment, posting, promotion and transfer of the judicial officers. Reference is made to Sections 4(1), 7, 9, 11, 12, 13, 16, 17 and 18 CrPC. Section 33 provides that the Judicial Officers shall have the powers conferred upon them by High Court and High Court is empowered to

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withdraw the powers conferred on any officer. Section 194 empowers the High Court to direct a Sessions Judge to try a particular case. Section 407 empowers the High Court to transfer the cases on judicial side and Section 483 stipulates the duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates. Section 482 vests inherent power in the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. Section 483 empowers the High Court to exercise superintendence over the subordinate judiciary. Rule 3, Part B of Chapter 26 of Delhi High Court Rules empowers the High Court to transfer the cases on administrative grounds. To summarize, the High Court has both judicial as well as administrative powers to regulate administration of justice. Reliance is placed on Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104; Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392; Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460; Ajay Singh v. State of Chhattisgarh, (2017) 3 SCC 330 and S. J. Chaudhri [Lt. Col. (Retd.)] v. State, (2006) 131 DLT 376 (DB).

Scheme of the CrPC vis-à-vis Irregularity in Procedure

19. Chapter XXXV CrPC deals with irregular proceedings. The object of Chapter XXXV is to protect the irregular proceedings unless the error has resulted in failure of justice. Section 460 protects irregularities which do not vitiate the proceedings whereas Section 461 lists out irregularities which vitiate proceedings. Section 462 deals with proceedings in a wrong place and Section 465 deals with the effect of an error, omission or irregularity.

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20. Chapter XXXV CrPC protects the irregularities in procedure unless it has resulted in failure of justice. Section 462 protects judgment given by a Criminal Court in a proceeding which took place in a wrong jurisdiction unless it has resulted in failure of justice. Section 465 protects the irregularities in the complaint, summons, warrants, proclamation, order, judgment or other proceedings before or during trial. Reliance is placed on Willie (William) Slaney v. State of M.P., (1955) 2 SCR 1140 and State of M.P. v. Bhooraji, (2001) 7 SCC 679.

Concept of „Illegality‟ and „Irregularity‟ in CrPC

21. In Pulukuri Kotayya v. King-Emperor, (1947) 1 Mad LJ 219, the Privy Council held that the distinction between an illegality and an irregularity is one of degree rather than of kind. In Willie (William) Slaney (supra), the Constitution Bench of the Supreme Court held that the illegality that strikes at the root of the trial and cannot be cured is not merely an irregularity but the illegality that may strike at the root of the trial and can be cured is merely an irregularity.

Concept of “Failure of Justice”

22. The conviction cannot be set aside merely on the ground of procedural irregularity unless it has resulted in failure of justice.

23. In Darbara Singh v. State of Punjab, (2012) 10 SCC 476, the accused challenged the conviction under Section 302 IPC on the ground that a charge under Section 302/34 of IPC was not framed against him. The Supreme Court rejected the objection on the ground that the appellant was unable to show what prejudice, if any, was caused to the appellant, even if such charge has not been framed against him, moreover, the appellant was always fully aware of all the facts. The Supreme Court held that “Failure of

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Justice” means serious prejudice caused to the accused. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under Indian Criminal Jurisprudence. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under criminal jurisprudence, then the accused can seek benefit under the orders of the Court.

24. In Willie (William) Slaney v. State of M.P. (supra), the Supreme Court held that the irregularities relating to the charge would not vitiate the conviction, if the accused knew what he was being tried for; main facts sought to be established against were explained to him clearly and fairly; and if he was given a full and fair chance to defend himself.

25. In Hanumant Dass v. Vinay Kumar, (1982) 2 SCC 177, the Supreme Court rejected the challenge to the conviction on the ground that the case was transferred to a Court which did not have territorial jurisdiction as it has not resulted in failure of justice.

26. In Kalpnath Rai v. State, (1997) 8 SCC 732, the Supreme Court rejected the contention that the sanction letter did not mention the section of the offence under which the accused were prosecuted as it has not resulted in failure of justice.

Sections 462 and 465 CrPC protects the irregularities pertaining to lack of jurisdiction

27. There are two types of jurisdictions of a Criminal Court, namely, (i) the jurisdiction with respect to the power of the Court to try particular kinds of offences, and (ii) the territorial jurisdiction. While the former goes to the root of the matter and any transgression of it makes the entire trial void, the

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latter is not of a peremptory character and is curable under Section 462. Territorial jurisdiction is a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular Court, the convenience of the accused as well as convenience of the witnesses who have to appear before the Court.

28. While considering the ambit of Sections 462 and 465, the Supreme Court in State of Karnataka v. Kuppuswamy Gownder, (1987) 2 SCC 74 held that the Scheme of CrPC is that where there is no inherent lack of jurisdiction either on the ground of lack of territorial jurisdiction or on the ground of any irregularity of procedure, an order or sentence awarded by a competent Court could not be set aside unless prejudice is pleaded and proved which will mean failure of justice. The Supreme Court specifically observed that „even if a trial takes place in a wrong place where the Court has no territorial jurisdiction to try the case still unless failure of justice is pleaded and proved, the trial cannot be quashed‟. Even in cases where trial was conducted in the wrong jurisdiction, it has been held by the Supreme Court that the same would not vitiate trial unless there has been a failure of justice. Reference is made to Mangaldas Raghavji Ruparel v. State of Maharashtra, (1965) 2 SCR 894; Ram Chandra Prasad v. State of Bihar, (1962) 2 SCR 50; State of A.P. v. Cheemalapati Ganeswara Rao (1964) 3 SCR 297 and Kamil v. State of U.P., (2019) 12 SCC 600.

Procedure in Criminal Cases

29. Section 353 CrPC provides that judgment in every trial in a Criminal Court shall be pronounced by the Presiding Officer in open Court. The term “Presiding Officer” has been used in Sections 61, 70, 105, 265D, 265F, 340, 353 CrPC and Sections 366 and 367 CrPC, 1898. In Section 265F, the term

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„Presiding Officer of the Court‟ is used in contrast to the Section 353 which uses the term „Presiding Officer‟. In Section 265F, delivery of judgment is associated with a particular Court whereas Sections 353 CrPC and 366 CrPC, 1898 do not associate the delivery of a judgment with a particular Court. Section 367 CrPC, 1898 provides that the judgment shall be written by the Presiding Officer of the Court whereas there is no such stipulation in Section 353 CrPC.

30. CrPC deals with the situation where the jurisdiction of a Judge, who recorded the whole or any part of the evidence, has ceased to exist. CrPC draws the distinction between the matters where hearing had been concluded prior to cessation of jurisdiction and part-heard matters. Section 326 has to be complied with even in cases of transfer of a judicial officer within the same Sessions division. Reference is made to Ranbir Yadav (supra); Bhaskar v. State, (1999) 9 SCC 551 and Anil Kumar Agarwal v. State of U.P., 2015 Cri LJ 2826.

31. Section 462 provides that no finding, sentence or order shall be set aside merely on the ground that the inquiry, trial or other proceedings took place in the wrong jurisdiction unless there has been a failure of justice. Similarly, where a judge who had prepared and signed a judgment after having recorded the entire evidence and hearing arguments, ceased to exercise jurisdiction prior to pronouncing the same, the successor Judge was permitted to pronounce the said judgment written and signed by his predecessor where all formalities stipulated under Section 353 have been complied with by the predecessor Judge. Reference is made to Bharti Arora v. State of Haryana, (2011) 1 RCR (Cri) 513 (2).

32. Section 353 does not limit pronouncement of a judgment “in the open

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Court” or by the “presiding officer of the Court” where matter was heard. However, Sections 353 and 354 have to be complied with. CrPC does not impose a bar on pronouncement of orders/judgments by the Judge who recorded the entire evidence and heard the matter or who heard the matter finally after evidence was recorded by someone else, merely because the said Judge has been transferred to another Court.

Division Bench judgment in Jitender‟s case

33. Note 2 attached to the transfer order dated 08th February, 2010 was not under challenge in Jitender‟s case. In that case, the Division Bench was dealing with the validity of the judgments by which the appellant were convicted, though dictated and signed by the Judge who heard the arguments but were „announced‟ by a successor Judge after the transfer of the predecessor Judge. Thereafter, the successor Judge heard the arguments on the point of sentence and passed the orders on sentence. The accused challenged the conviction on the ground that the judgment was not duly pronounced and Section 353 was not complied with. The question before the Division Bench was whether such „announcements‟ could amount to valid judgments? The Division Bench held that the successor Judge cannot adopt her predecessor‟s written judgment as her own and CrPC does not permit pronouncement of an order by a successor Judge authored, signed and dated by a predecessor Judge. Para 47 of the judgment is reproduced hereunder:

“47…While it is true that the note sought to enable the judicial officers to pronounce judgments/orders within a period of 2/3 weeks, notwithstanding, the posting/transfer, that was merely an administrative order and cannot over ride the statutory provisions of the 1973 Code. The High Court could not permit something by way of an administrative order which was not permissible under the 1973 Code. The mere fact that there is a

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note such as Note 2 in the order dated 08.02.2010 would not enable us to detract from the statutory provisions which do not permit the pronouncement of a judgment by a successor judge which have been written and signed by the predecessor and that, too, after the predecessor ceased to have jurisdiction over the said case…”

34. On a bare reading of para 47 of the judgment in Jitender‟s case, it appears that the meaning/intention behind Note 2 was not gone into by the Division Bench. The Division Bench held that an administrative order cannot override the statutory provisions of the CrPC. As such, it cannot be said that Note 2 in itself has been set aside by the Division Bench in Jitender‟s case especially since in the facts of the said case, there was a clear departure from what was prescribed in Note 2 i.e., rather than the Presiding Officer who heard the matter pronouncing judgment after transfer albeit at Court to which he was posted, the judgment was „announced‟ by the successor although the same was dictated and signed by the predecessor Judge and dispatched to the successor Judge in sealed cover. Attention of the Division Bench does not appear to have been drawn to Section 462 CrPC where setting aside of an order/judgment merely on account of lack of jurisdiction has been specifically barred unless “such error has in fact occasioned a failure of justice”. It also appears that the attention of the Division Bench was not drawn to the judgment of the Supreme Court in Kuppuswamy Gownder, (supra), where the scope of Section 462 CrPC has been extended to cases where trial takes place in a wrong place.

35. While considering the impact of Jitender‟s case, it is important to note that every observation in a judgment is not a binding precedent. In State of Orissa v. Mohd. Illiyas, (2006) 1 SCC 275, the Supreme Court held that a

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judgment is a precedent on its own facts. It is not everything written in the judgment constitutes a precedent. The relevant portion is as under:-

“12. … Reliance on the decision without looking into the factual background of the case before it, is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent. (See State of Orissa v. Sudhansu Sekhar Misra [(1968) 2 SCR 154: AIR 1968 SC 647] and Union of India v. Dhanwanti Devi [(1996) 6 SCC 44]) A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in an Act of Parliament. In Quinn v. Leathem [1901 AC 495 : 85 LT 289 : (1900-03) All ER Rep 1 (HL)] the Earl of Halsbury, L.C. observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be the exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.” 36. In Mehboob Dawood Shaikh v. State of Maharashtra, (2004) 2 SCC

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362, the Supreme Court held that a decision is available as a precedent only if it decides a question of law. In Jitender‟s case, the question before the Division Bench was as to (i) whether decisions can be delivered by a successor Judge in criminal matters (ii) whether decisions announced in open Court without complying with provisions of Section 353 CrPC can be considered as validly pronounced and (iii) whether decisions can be authored by successor Judge in criminal matters after relinquishing charge on their transfer. However, the Division Bench did not consider the question as to (i) whether it was mandatory for the successor Judge to pronounce a judgment authored by the predecessor Judge in view of Note 2 appended to the transfer order and no other course of action was available to the successor judge and (ii) whether the defect in pronouncement of judgment therein is curable under Section 462 CrPC.

Courts have to exercise caution while setting aside administrative orders

37. Note 2 appended to the Transfer Order dated 08th February, 2010 and Transfer Order dated 13th March, 2020 has been issued in compliance with the principle that he who hears must decide as held in Gullapalli Nageswara Rao v. A.P.S.R.T.C., AIR 1959 SC 308. Note 2 further ensure that pendency of cases is curbed to a certain extent by permitting Judge to pronounce judgments/orders within a particular time frame subsequent to their transfer. It is also clear that Note 2 is not in violation of any of the legal principles stipulated in CrPC. While examining the validity of an administrative order issued by the Patna High Court under Section 9(6) CrPC that the trial will be conducted inside the Jail premises for the expeditious trial of the case, it was held by the Supreme Court in Mohd. Shahabuddin v. State of Bihar, (2010) 4 SCC 653 that while reviewing administrative decisions, standards of

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natural justice should be maintained and the power of judicial review must not be applied blindly.

38. Pertinently, Note 2 is issued in exercise of the supervisory jurisdiction of this Court under Article 235 of the Constitution as also in furtherance of the powers of the High Court under Section 483 CrPC to ensure expeditious and proper disposal of cases by the Courts. It must also be kept in mind that there is presumption that all judicial and official acts have been regularly performed by the judicial officers. As such, unless prejudice or failure of justice can be shown, administrative orders issued by High Court ought not to be set aside.

Procedure adopted by Ld. ASJ has not resulted in any irregularity or illegality

39. It is not the case of the appellants herein that the ld. ASJ, Shri Jagdish Kumar has not complied with provisions of Section 353 CrPC while pronouncing the Judgment. It is not the case of the appellants that parties were not duly notified of the pronouncement in the cause list of the Court where matter was heard and evidence was recorded, in the cause list of the Court where order was pronounced or on the District Court website. It is also not the case of the appellants that the order/judgment has not been duly signed by ld. ASJ. It is also not the case of the Appellant that the language or contents of the order/judgment do not comply with Section 354 CrPC. As the entire evidence in the matter had been recorded and arguments had been heard, the trial stood completed on 06th March, 2020. As per Section 353 CrPC, judgment in every trial shall be pronounced „after termination of trial‟. It is also clear that sentencing is a separate stage of trial. It is not the case of the Appellants herein that in view of procedure followed by ld. ASJ,

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procedure prescribed under Section 235 CrPC for a hearing on sentence could not be complied with. As such, it is clear that procedure prescribed under CrPC has not been violated, at any stage, in the present appeals.

Lapse of over four months in delivering the Impugned Judgment is an irregularity and can be cured

40. Admittedly, there is a time gap of over four months between completion of trial and pronouncement of the judgment. Ld. ASJ relinquished charge as ASJ-04, Shahdara on 16th March, 2020 before the lunch session and took charge as ASJ (Special Fast Track Courts), North District, Rohini on 16th March, 2020 in the fore-noon.

41. Chapter 11 Part A, Rule 4 of the Delhi High Court Rules provides for the manner in which a delay in pronouncement of a judgment by a subordinate Judge is to be dealt with. At the same time, it is important to mention that various orders have been passed by this Court wherein it is stipulated that there should be no delay in delivery of judgments in view of the pandemic prevalent in the country. Reference is made to Dalbir Singh v. Satish Chand CRP No. 53/2020 decided by this Court on 22nd July, 2020; Shushree Securities Pvt. Ltd. v. Times A & M (India) Limited, CM(M) No. 98/2020 decided by this Court on 02nd March, 2020 and Deepti Khera v. Siddharth Khera, CM(M) No. 1637/2019 decided by this Court on 18th November, 2019.

42. Even though recommendations have been made by the Supreme Court directing that judgments be delivered in a time bound manner in Anil Rai v. State of Bihar, (2001) 7 SCC 318, none of the recommendations made therein stipulate that judgments ought to be set aside merely on account of delay of four months. Even though there have been instances where the

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Supreme Court has set aside judgments on account of delay in pronouncements, the cases pertain to a delay of over two years. Reference is made to Kanhaiyalal v. Anupkumar, (2003) 1 SCC 430 and Bhagwandas Fatehchand Daswani v. HPA International, (2000) 2 SCC 13. Further, practice directions of this Court as stipulated in the Delhi High Court Rules do not stipulate that judgments ought to set aside merely on account of delay.

Right of accused to a speedy trial and interest of society

43. It is clear that various provisions have been stipulated in the CPC and CrPC in order to ensure that there is no delay in delivery and pronouncement of judgments/orders. In the event that the said provisions are violated, a Court may consider setting aside the conviction keeping in mind various extraneous factors such as the possibility that the Judge may have forgotten the facts, public confidence in the judiciary etc. However, it is also important to keep in mind the following observations of the Supreme Court in Mohd. Hussain v. State, (2012) 9 SCC 408:

“40. “Speedy trial” and “fair trial” to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused's right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused

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but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered.” Applicability of de facto doctrine and Article 233A of the Constitution

44. In the present case, Note 2 in the transfer order dated 13th March, 2020 permits the Judge to pronounce the judgment within 2-3 weeks after relinquishing the charge and, as such, there is no irregularity in the pronouncement of the judgment. Without prejudice, it is submitted that even assuming Note 2 was invalid, the de facto doctrine laid down by the Supreme Court in Gokaraju Rangaraju (supra), would protect the impugned judgments in the present appeals. In Gokaraju Rangaraju (supra), the Supreme Court considered the validity of the judgments and orders passed by the Sessions Judges whose appointments were subsequently quashed by the Supreme Court. The Supreme Court applied the de facto doctrine to protect the judgments/orders of such Judges.

45. Article 233A was introduced in the Constitution as a result of the 20th Amendment to the Constitution pursuant to the Judgment in Chandra Mohan (supra). Article 233A is reproduced herein under:

“Article 233A - Validation of appointments of, and judgments, etc., delivered by, certain district judges Notwithstanding any judgment, decree or order of any court,

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(a)(i) no appointment of any person already in the judicial service of a State or of any person who has been for not less than seven years an advocate or a pleader, to be a district judge in that State, and (ii) no posting, promotion or transfer of any such person as a district judge, made at any time before the commencement of the Constitution (Twentieth Amendment) Act, 1966, otherwise than in accordance with the provisions of article 233 or article 235 shall be deemed to be illegal or void or ever to have become illegal or void by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions; (b) no jurisdiction exercised, no judgment, decree, sentence or order passed or made, and no other act or proceeding done or taken, before the commencement of the Constitution (Twentieth Amendment) Act, 1966 by, or before, any person appointed, posted, promoted or transferred as a district judge in any State otherwise than in accordance with the provisions of article 233 or article 235 shall be deemed to be illegal or invalid or ever to have become illegal or invalid by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions.” Submissions of Mr. Vikas Pahwa, Ld. amicus curiae 46. In the present case, the Judgment was delivered by ld. ASJ, Shri Jagdish Prasad in open Court on 09th July, 2020. The pronouncement is in consonance with Section 353 CrPC and thus, is a valid judgment and no prejudice has been caused to the accused resulting in failure of justice. Ld. ASJ had presided over the trial, appreciated the evidence and heard the final arguments of the case in terms of Section 235 CrPC on 29th February, 2020, 02nd March, 2020, 03rd March, 2020 and on 06th March, 2020, before reserving the judgment. The trial concluded in terms of Chapter XVIII CrPC, upon hearing of the arguments of the case on 06th March, 2020. The

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only proceeding left was the pronouncement of the judgment in terms of Section 353 CrPC.

47. The mandate of Section 353 CrPC is that the Presiding Officer pronounces the judgment in open Court, immediately after the termination of the trial or at any subsequent time. The ld. Presiding Officer has to read the judgment in whole or in part and sign the same along with the date in open Court. In the present case, the Presiding officer has done the same and hence, the pronouncement is in consonance with the said provision.

48. The term „Presiding officer‟ referred to Section 353 CrPC has not been defined in CrPC. It has to be construed liberally taking into consideration that the Judge before whom the evidence has been recorded, arguments have been heard and the trial terminated for pronouncement of the judgment. The only mandatory requirement is that the Judge has to apply his mind by appreciating the evidence, which he has to declare while pronouncing the judgment.

49. Ld. ASJ had the jurisdiction to pass the judgment being a de facto Judge in service and holding a court of competent jurisdiction in Delhi. The ld. ASJ pronounced the judgment on 09th July, 2020, assuming to have jurisdiction in view of the Transfer Order passed by the High Court on 13th March, 2020. To test the validity of the judgment pronounced on 09th July, 2020 by the ld. ASJ, de facto doctrine has to be applied. This doctrine is engrafted as a matter of public policy and necessity to protect the interest of public and individuals involved in the official acts of persons exercising the duty under lawful authority. Since the judgments pronounced by the Judges post-transfer in different jurisdictions, involves the personal liberty of convicts at large, the public policy gets involved. This doctrine is well

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established that „the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid or binding as if they were the acts of officers de jure‟.

50. In Pulin Behary Das v. King Emperor, 1911 SCC Online Cal 159 Calcutta High Court held that the de facto doctrine is aimed at the prevention of public mischief and the protection of public and private interest.

51. In Gokaraju Rangaraju v. State of Andhra Pradesh, 1981 (3) SCC 132, the Supreme Court upheld the validity of the judgments and orders passed by the Sessions Judges whose appointments were subsequently quashed by the Supreme Court. The Supreme Court applied the de facto doctrine to protect the judgments/orders of such Judges whose appointments were quashed. The de facto doctrine avoids endless confusion and needless chaos. An illegal appointment may be set aside, and a proper appointment may be made, but the acts of those who hold office de facto are not so easily undone and may have lasting repercussions and confusing sequels if attempted to be undone. The de facto doctrine thus has two requisites, namely, the possession of the office and the performance of the duties attached thereto and other is the color of title, i.e., apparent right to the office and acquiescence in the possession thereof by the public. According to this doctrine, the acts of officers de facto performed within the sphere of their assumed official authority, in the interest of the public or third parties and not for their own interest, are generally held valid and binding as if they were performed by de jure officers.

52. In the present case, no prejudice whatsoever has been caused to the accused by the pronouncement of the judgment. The ld. ASJ pronounced

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the judgment by assuming power under the administrative transfer order dated 13th February, 2020 which empowered him to pronounce the judgment in reserved matters.

High Court has superintendence over the District Courts for conferring jurisdiction to try cases and the transfer of the Judges

53. Under Articles 227 and 235 of the Constitution, the High Court has superintendence over all the Courts in Delhi and confers jurisdiction on the District Courts to try cases in accordance with law, including the power to transfer the cases from one District to another. The cases can also be transferred by the High Court under Sections 194, 407 and 483 CrPC. Reliance is placed on Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104; Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392; Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460; Ajay Singh v. State of Chhattisgarh, (2017) 3 SCC 330 and Achutananda Baidya v. Prafullya Kumar Gayen, (1997) 5 SCC 76.

54. In the present case, the transfer order dated 13th March, 2020 has been issued by the High Court in exercise of its administrative power of superintendence under Article 227 of the Constitution by empowering the Judges to pronounce the judgments in reserved matters. The administrative order of the High Court is not in conflict with the statutory provisions as the power is exercised for administrative exigency, without impinging upon or prejudicially affecting the rights and interests of the parties to any judicial proceeding.

Section 462 CrPC protects the finding, sentence or order challenged on the ground of jurisdiction of a Sessions division

55. Section 462 CrPC protects the finding, sentence or order of any

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criminal Court on the ground that the enquiry, trial or other proceedings took place in a wrong Sessions division unless such error has occasioned failure of justice. 56. In Padam Singh Thakur v. Madan Chauhan, 2016 SCC OnLine HP 4260, the conviction was challenged on the ground that the case was adjudicated by the Judicial Magistrate, Shimla whereas it should have been tried by the Judicial Magistrate, Theog. The Himachal Pradesh High Court rejected the challenge on the ground that no prejudice whatsoever has been caused to the accused. The Himachal Pradesh High Court held that Section 462 CrPC saves the judgments if the trial had taken place in a wrong Sessions division.

57. In the present case, the ld. ASJ presided over the trial, heard the final arguments and thereafter, reserved the judgment. The ld. ASJ thereafter pronounced the judgment in terms of Section 235 CrPC and no prejudice whatsoever has been caused to the accused and there was no failure of justice.

Section 465 CrPC mandates that an irregularity, which does not have the character of an illegality and does not cause prejudice to the accused, can be cured

58. Section 465 CrPC provides that the finding, sentence or order of a Court cannot be set aside on the ground of any error, omission or irregularity unless there has been failure of justice. Section 465 CrPC protects the findings, sentence or order in respect of an irregularity and not an illegality. In Willie (William) Slaney (supra), the Supreme Court defined illegality as a defect which strikes at the very substance of justice such as refusal to give accused a hearing, refusal to allow the accused to defend himself, refusal to explain the charge to the accused and such illegalities are not protected by

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Section 465 CrPC.

59. In Purushottamdas Dalmia v. State of West Bengal, AIR 1961 SC 1589, the conviction by the Sessions Court, Calcutta was challenged by the accused on the ground that Calcutta Court had no jurisdiction to try the offence committed outside Calcutta. The Supreme Court held that there are two types of jurisdiction; first, being the power of the Court to try particular kind of offences and second, being territorial jurisdiction attached to various Courts for the sake of convenience. The Supreme Court emphatically held that if a Court has no jurisdiction to try a particular offence, then it would amount to be a flagrant violation, which would render the entire trial void. However, similar importance is not attached to an irregularity arisen due to territorial jurisdiction of a Court. 60. In Bhooraji, (supra), the conviction was challenged on the ground that the Sessions Court took cognizance of the offences without the case being committed to it. The Supreme Court held that a mere irregularity, which is not in the nature of illegality, can be cured by aid of Section 465 CrPC unless there has been failure of justice. Relevant portion of the judgment is reproduced as under:-

“12. Section 465 of the Code falls within Chapter XXXV under the caption "Irregular Proceedings". The chapter consists of seven sections starting with Section 460 containing a catalogue or irregularities which the legislature thought were not enough to axe down concluded proceedings in trials or enquiries. Section 461 of the Code contains another catalogue of irregularities which in the legislative perception would render the entire proceedings null and void. It is pertinent to point out that among the former catalogue constrains the instance of a Magistrate, who is not empowered to take cognizance of offence, taking cognizance erroneously and in good faith. the

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provision says that the proceedings adopted in such a case, though based on such erroneous order, "shall not be set aside merely on the ground of his not being so empowered." 13. It is useful to refer to Section 462 of the Code which says that even proceedings conducted in a wrong sessions divisions are not liable to be set at naught merely on that ground. However, an exception is provided in that section that if the court is satisfied that proceedings conducted erroneously in a wrong sessions division "has in fact occasioned a failure of justice" it is open to the higher court to interfere. While it is provided that all the instances enumerated in Section 461 would render the proceedings void, no other proceedings would get vitiated ipso facto merely on the ground that the proceedings were erroneous. The court of appeal or revision has to examine specifically whether such erroneous steps had in fact occasioned failure of justice. Then alone the proceedings can be set aside. Thus the entire purport of the provisions subsumed in Chapter XXXV is to save the proceedings linked with such erroneous steps, unless the error is of such a nature that it had occasioned failure of justice. xxx xxx xxx 15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity. 16. What is meant by "a failure of justice" occasioned on account of such error, omission or irregularity? This Court has observed in Shamnsaheb M. Multtani vs :State of Karanataka (2001) 2 SCC 577 thus:

"23. We often hear about 'failure or justice' and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is

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too pliable or facile an expression which could be fitted in any situation of a case. The expression 'failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord Diplock in Town Investments Ltd. v. Deptt. of the Environment, 1977 (1) All E.R. 813. The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage." 17. It is an uphill task for the accused in this case to show that failure of justice had in fact occasioned merely because the specified Sessions Court took cognizance of the offences without the case being committed to it. The normal and correct procedure, of course, is that the case should have been committed to the Special Court because that court being essentially a Court of Sessions can take cognizance of any offence only then. But if a specified Sessions Court, on the basis of the legal position then felt to be correct on account of a decision adopted by the High Court, had chosen to take cognizance without a committal order, what is the disadvantage of the accused in following the said court?” (Emphasis Supplied)

61. In the present case there is no „failure of justice‟ as the predecessor Judge presided over the trial, heard the final arguments, authored the judgment and finally pronounced the judgment in consonance with Section 353 CrPC. Even if it is presumed for the sake of arguments, that any irregularity has been caused due to the delay in pronouncement, it is curable under Section 465 CrPC. In Jitender‟s case, the defect was not an irregularity but rather an illegality which could not be cured. The Judgment was pronounced in violation of Section 353 CrPC, which was held to be no Judgment in the eyes of law. In the present case, the Judgment passed by the Ld. Predecessor Judge is valid and legal, and the case was referred to the

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Successor Judge to pass the order on sentence in terms of Section 235(2) CrPC. The Successor Judge has the jurisdiction to pass the Order on Sentence in terms of Section 35 CrPC.

Judgment passed by Division Bench in Jitender‟s case is per incuriam and thus, should be overruled

62. Section 326 (1) CrPC relied upon by the Division Bench while deciding the above mentioned case states that whenever a Judge or a Magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself. Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged. 63. Section 326 (1) CrPC while enabling the Successor Judge or Magistrate to proceed in the manner indicated above, does not specifically empower the Succeeding Judge or Magistrate to pronounce a Judgment written by the predecessor Judge or Magistrate without application of mind. This section only applies when the criminal trial is pending and not terminated, while the matter is fixed for the pronouncement of judgment. The Division Bench has wrongly relied upon Section 326 CrPC, which had no application on the facts and circumstances of that case.

64. While deciding the legality of Note 2 in the transfer/posting order, the

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Division Bench ought to have heard the Delhi High Court. However, the Division Bench did not issue notice to High Court and hence, the High Court was not given an opportunity to defend its order. The principle of audi alteram partem is of paramount importance and the same cannot be overlooked. Thus, the order passed by the Division Bench is improper on this count.

65. Note 2 of the transfer/posting order was issued by the High Court while exercising powers under Article 227 of the Constitution. If given an opportunity, the Delhi High Court could have defended Note 2, being an administrative order passed by this High Court in exercise of the power of superintendence under Article 227, which is the basic structure of the Constitution. The Division Bench thus did not take into consideration the power of superintendence of the High Court under Article 227 of the Constitution. 66. The Division Bench overlooked the mandate of Section 462 CrPC, which categorically states that no finding, sentence or order can be challenged on the ground of jurisdiction of any Sessions division. 67. The Division Bench failed to take into consideration the mandate of Section 465 CrPC, which categorically states that unless there has been a failure of justice, convictions cannot be set aside merely on the ground of procedural irregularity. 68. Since the relevant provisions of CrPC, Article 227 of the Constitution and various judgments of the Supreme Court in this regard were overlooked by the Division Bench while passing the Judgment in the case Jitender‟s case, the same deserves to be overruled.

69. The judgment passed by the Division Bench in Jitender‟s case is bad

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in the eyes of law as the Division Bench did not consider the de facto doctrine discussed in Gokaraju Rangaraju (supra).

Submissions relating to the sentencing policy

70. Section 357 CrPC was introduced on the basis of recommendations made by the Law Commission in the 41st Report submitted in 1969, which discussed section 545 (now section 357) of the erstwhile Criminal Code of 1898 extensively. The Report recognized that Criminal Courts had the discretion to order or not to order payment of compensation. On the basis of 41st Report, the Government of India introduced the Code of Criminal Procedure Bill, 1970 which aimed at revising section 545 and introducing it as Section 357. The Statement of Objects and Reasons underlying the Bill was that Section 545 only provided compensation when the Court imposed a fine and the amount of compensation was limited to the fine whereas under the new provision (Section 357), compensation can be awarded irrespective of whether the offence is punishable with fine and if fine is actually imposed.

71. Section 357 empowers the Court to award compensation to the victim having due regard to the nature of injury, the manner of inflicting the same, the capacity of the accused to pay and other relevant factors. The Code of Criminal Procedure, 1973 incorporated Section 357 which states in its Objects that the provision was inserted as it “intended to provide relief to the proper sections of the community”.

72. The amendments to the Code of Criminal Procedure, 2008 focused heavily on the rights of victims in a criminal trial, particularly in trials relating to sexual offences. Though the 2008 Amendment left Section 357 CrPC unchanged, it introduced Section 357A CrPC under which the Court is

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empowered to direct the State to pay compensation to the victim in cases where Section 357 is not adequate for rehabilitation or where cases end in acquittal or discharge. The insertion of Sections 357A and 357B in CrPC has triggered a new compensatory regime. Reference is made to Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770.

73. Section 357A was introduced in CrPC on recommendation of the 154th Law Commission Report to protect victims. The 154th Law Commission Report on the CrPC devoted an entire chapter to 'Victimology' in which the growing emphasis on victim's rights in criminal trials was discussed extensively as under:

“1. Increasingly the attention of criminologists, penologists and reformers of criminal justice system has been directed to victimology, control of victimization and protection of victims of crimes. Crimes often entail substantive harms to people and not merely symbolic harm to the social order. Consequently the needs and rights of victims of crime should receive priority attention in the total response to crime. One recognized method of protection of victims is compensation to victims of crime. The needs of victims and their family are extensive and varied. xxx xxx xxx 9.1 The principles of victimology has foundations in Indian constitutional jurisprudence. The provision on Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) form the bulwark for a new social order in which social and economic justice would blossom in the national life of the country (Article 38). Article 41 mandates inter alia that the State shall make effective provisions for "securing the right to public assistance in cases of disablement and in other cases of undeserved want." So, Article 51A makes it a fundamental duty of every Indian citizen, inter alia 'to have compassion for living creatures and humanism. If interpreted and to 'develop emphatically imaginatively expanded these provisions can form the constitutional underpinnings for victimology.

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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. xxx xxx xxx 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 realized. The State should accept the principle of providing assistance to victims out of its own funds..... xxx xxx xxx 48. The question then is whether the plenitude of the power vested in the Courts Under Section 357 & 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? xxx xxx xxx

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 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

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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. 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. xxx xxx xxx 6.8.1 The principle of compensating victims of crime has for long been recognized by the law though it is recognized 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 Cr.PC). Compensation can be awarded only if the offender has been convicted of the offence with which he is charged. xxx xxx xxx

6.8.7 Sympathizing with the plight of victims under Criminal Justice administration and taking advantage of the obligation to do complete justice under the Indian Constitution in defense

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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) and in Chairman, Railway Board v. Chandrima Das 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.” (Emphasis Supplied) 74. On perusal of Section 357 CrPC it is clear that rights under Section 357 are not foreclosed but continued in Section 357A CrPC. The Courts are empowered to travel beyond Section 357 CrPC and award compensation where relief under Section 357 CrPC is inadequate or where the cases end in acquittal or discharge. This amendment has brought forth rehabilitation of victims to the forefront and it is the Court‟s duty to make such provisions operative and meaningful.

75. Pursuant to the directions of the Division Bench of this Court in judgment dated 07th July, 2008 in Criminal Appeal No. 5/2000 titled Khem Chand v. State of Delhi, Delhi State Legal Services Authority is granting

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interim compensation to the victims under the Delhi Victims Compensation Scheme, 2011 at initial stage for their rehabilitation on the recommendations of SHO of the case concerned and also by the Court concerned while disposing the matter. The nature of extent of victimisation has to be adequately understood considering the social and stark financial disparity amongst our citizens. The rights and rehabilitation needs of each victim have to be minutely gauged, recognized and redressed. Keeping this in consideration, The Delhi Victim Compensation Scheme, 2011 was promulgated which was replaced by the Delhi Victims Compensation Scheme, 2015 which has been in turn replaced by Delhi Victims Compensation Scheme, 2018 notified on 27th June, 2019 by notification no. F.11/35/2010/HP-II/2677-2693.

76. In State of Gujarat v. Hon'ble High Court of Gujarat, 1998) 7 SCC 392, the issue arose whether the Government should be permitted to deduct the expenses incurred for food and clothes from prisoner‟s wages. The Court allowed the same and observed that it is a constructive thinking for the State to make appropriate law for diverting some portion of the income earned by the prisoners when they are in jail to be paid to deserving victims. A victim of crime suffers the most and even though retribution is the primary function of law, reparation is the ultimate goal of the Law. The Supreme Court succinctly noted:

“99……….A victim of crime cannot be a ''forgotten man'' in the criminal justice system. It is he who has suffered the most. His family is ruined particularly in case of death and other bodily injury. This is apart from the factors like loss of reputation, humiliation, etc. An honour which is lost or life which is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace.”

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77. In Hari Singh v. Sukhbir Singh, (1988) 4 SCC 551, seven persons were convicted under Sections 307/149, 325/l49, 323/149 and 148 IPC and sentenced to undergo rigorous imprisonment from one year to three years. The High Court acquitted two of the accused of all charges, and five of the accused of the offence under Sections 307/149 IPC while maintaining their conviction and sentence under Sections 325/149, 323/149 IPC and Section 148 IPC. They were however released on probation of good conduct. Each one of accused was ordered to pay compensation of Rs. 2,500/- to Joginder who was seriously injured and whose power of speech was permanently impaired. The Supreme Court deplored the failure of Courts in awarding compensation under 357 CrPC. The Court recommended all the courts to exercise the power available under Section 357 CrPC liberally to meet ends of justice. The court observed:

“10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to

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exercise this power liberally so as to meet the ends of justice in a better way.” The same position was reiterated by courts in Manish Jalan v. State of Karnataka, (2008) 8 SCC 225; K.A. Abbas H.S.A. v. Sabu Joseph, (2010) 6 SCC 230 and Roy Fernandes v. State of Goa, (2012) 3 SCC 221.

78. In Ankush Shivaji Gaikwad (supra), the Supreme Court reiterated the law laid down in Hari Singh‟s case and held that Section 357 confers a power coupled with a duty on the Courts to apply its mind to the question of awarding compensation in every criminal case. After noting number of cases, the Court observed that, “Section 357 CrPC confers a duty on the Court to apply its mind to the question of compensation in every criminal case. It necessarily follows that the Court must disclose that it has applied its mind to this question in every criminal case.” The ignorant attitude of lower judiciary was intolerable to the Supreme Court when it apparently observed that:

“67.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.” In para 68 of the said judgment, the Supreme Court directed that the copy of the judgment be forwarded to the Registrars of all the High Courts for circulation among Judges handling criminal trials and hearing appeals.

79. In Satya Prakash v. State, 2013 (3) MWN (Cr.) 373 (Del.), this Court

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reiterated the same while deciding the scope of compensation under Sections 357 and 357A CrPC to victims of motor accidents. This Court laid down the guidelines for awarding compensation by Criminal Court to all victims of motor accident offences even if they are in receipt of compensation from Motor Accident Claims Tribunal. Further the Court directed a summary inquiry to be conducted by Criminal Court for ascertaining quantum of compensation by directing the SHO of Police station to submit „Victim Impact Report‟.

80. In Vikas Yadav v. State of U.P, 2015 SCC OnLine Del 7129, the Division Bench of this Court held that although theorizing is one thing and practically carrying out what the Section mandates in order to achieve its true objective requires aid of the judiciary to form guidelines on Scheme of Compensation under Section 357. There is huge cost of litigation even in criminal cases also though comparatively criminal cases run for a lesser duration. The contributing factors in the increase is the fact that the accused who is in the state custody is deemed to be innocent and therefore, all expenses of such person as long as he is in custody is borne by the State itself. At the end of the trial, Courts may ask the accused to pay for the expenses, which are surprisingly limited to the fine to be paid under Section 357. The litigants take advantage of such expenses borne by the State and the State ends up paying amount for trips to the hospital and other places of the accused. This fact has been predominantly deprecated by the Division Bench in Vikas Yadav (supra), where the Court went to miniscule minutes of each penny spent on the accused during the entire trial and ordered for the recovery of the same. The Division Bench imposed a fine of Rupees fifty lakhs on the accused and ordered it to be disbursed. The Supreme Court in

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appeal Vikas Yadav v. State of Uttar Pradesh, (2016) 9 SCC 541 upheld the compensation Scheme under Section 357 CrPC and modified it by enhancing the fine and determining the compensation as per facts of the case, thereby reaffirming the compensation Scheme.

81. The law in many jurisdictions particularly in continental countries recognizes two types of rights of victims of crime, firstly, the victim‟s right to participate in criminal proceedings and secondly, the right to seek and receive compensation from the criminal court for injuries suffered as well as appropriate interim reliefs in the course of proceedings.

82. In Suresh v. State of Haryana, (2015) 2 SCC 227, the Supreme Court interpreted Section 357 CrPC to include interim compensation also. In a case where State failed to protect the life of two, the Court observed:

“16. We are of the view that it is the duty of the courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the Court ought to direct grant of interim compensation, subject to final compensation being determined later. Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances of an individual case.

17. We are also of the view that there is need to consider upward revision in the scale for compensation and pending such consideration to adopt the scale notified by the State of Kerala in its scheme, unless the scale awarded by any other State or Union Territory is higher. The States of Andhra Pradesh, Madhya Pradesh, Meghalaya and Telangana are

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directed to notify their schemes within one month from receipt of a copy of this order. 18. We also direct that a copy of this judgment be forwarded to National Judicial Academy so that all judicial officers in the country can be imparted requisite training to make the provision operative and meaningful. 19. We determine the interim compensation payable for the two deaths to be rupees ten lakhs, without prejudice to any other rights or remedies of the victim family in any other proceedings. 20. Accordingly, while dismissing the appeal, we direct that ...the victim be paid interim compensation of rupees ten lakhs. It will be payable by the Haryana State Legal Services authority within one month from receipt of a copy of this order. If the funds are not available for the purpose with the said authority, the State of Haryana will make such funds available within one month from the date of receipt of a copy of this judgment and the Legal Services Authority will disburse the compensation within one month thereafter”.

83. In Ankush Shivaji Gaikwad (supra) the Supreme Court developed on its position taken in Hari Singh (supra) and held that Section 357 CrPC confers a power coupled with a duty on the Courts to apply its mind to the question of awarding compensation in every criminal case. The Supreme Court laid down the proposition that: - “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”. The Court made application of Sections 357 and 357A CrPC mandatory while sentencing the accused by directing the Courts to state the reasons for application or non- application of Sections 357 or 357A CrPC before delivering the order on sentence. The Supreme Court, in Suresh (supra),

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categorically observed that Section 357A CrPC was introduced on the recommendation of the 154th Law Commission Report with the sole purpose of ensuring protection to victims.

Submissions of Prof. G.S. Bajpai, Professor of Criminology & Criminal Justice, National Law University, Delhi

84. Prof. G.S. Bajpai has submitted the research paper on Victim Restitution Scheme. Prof. G.S. Bajpai has also made oral submissions to assist this Court. Prof. G.S. Bajpai referred to the resolution passed by General Assembly of United Nations titled UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power on 11th November, 1985. Clause 8 of the U.N. Declaration deals with the restitution to the victims of the crime. It is submitted that the crime has numerous impacts on the victim including physical, financial, social and sociological impact. Prof. G.S. Bajpai has suggested the Victim Restitution Scheme, according to which the Investigating Officer should prepare a report relating to the loss or injury suffered by the victim and the financial capacity of the accused during the course of investigation.

85. After conviction of an accused, the Court should constitute an Inquiry Committee to determine the injury suffered by the victim; cost incurred by the State in prosecution and financial capacity of the accused to pay the restitution amount; the Inquiry Committee should comprise of a panel of two members from DSLSA, Police, Advocates, eminent persons in the field of law and social workers; the Inquiry Committee should call for an affidavit from the accused with respect to his financial capacity and an affidavit from the victim with respect to the impact of crime and data from the Investigating Officer and prosecution with respect to the cost of prosecution;

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Inquiry Committee should thereafter inquire into the matter and submit the report to the Court within 30 days; the Court should determine the restitution amount after considering the report and hearing the parties. Prof. G.S. Bajpai has also given suggestions for protection and disbursement of the restitution amount to the victims. Prof. G.S. Bajpai has also submitted the formats of report of the Investigating Officer; and formats of the affidavit of the victim and format of the affidavit of the accused.

Submissions of Mr. Rahul Mehra, Ld. Standing Counsel, Govt. of NCT of Delhi

86. On 29th November, 1985, The General Assembly of United Nations adopted the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which emphasized the need to set norms and minimum standards for protection of victims of crime. The said declaration recognized four major components of rights of victims of crime, namely, access to justice and fair treatment; restitution; compensation and assistance. Section 357A CrPC was incorporated to give effect to the UN Declaration.

87. Every victim of crime undergoes immense physical, emotional and mental trauma apart from economic losses. State as a custodian of all Fundamental Constitutional Rights is not only legally but also morally and socially bound to come to the rescue of victims and provide them all help so that they can overcome their trauma, both emotionally as well as financially.

88. The nature and extent of victimisation has to be adequately understood considering the social and stark financial disparity amongst the citizens. The rights and rehabilitation needs of each victim have to be minutely gauged, recognized and redressed. They deserve attention and help.

89. In Khem Chand v. State, Crl.A.No.5/2000, this Court passed

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directions for grant of interim compensation to the victims at the initial stage for rehabilitation whereupon DSLSA granted interim compensation to the victims and DSLSA established a cell to provide counseling to the victims of sexual assault.

90. Victim Compensation Scheme, 2011 was notified which was later replaced by Delhi Victim Compensation Scheme, 2015 and then again replaced by Delhi Victim Compensation Scheme, 2018 which is in force now.

91. In Nipun Saxena v. Union of India, (2019) 2 SCC 703 the Supreme Court passed various directions with respect to the compensation to the victims of crime in pursuance to which Delhi Victim Compensation Scheme, 2015 was replaced by Delhi Victim Compensation Scheme, 2018.

92. Delhi Victim Compensation Scheme, 2018 contains two parts – Part I deals with the victims of offences categorized in the schedule whereas Part II deals with women victims/survivors of sexual assault and other crimes. The salient features of Delhi Victim Compensation Scheme, 2018 are as under:

(i) In every matter wherein the convict is not in position to compensate the victim, the Trial Court may consider the same and with reasons in writing, may recommend the matter to District Legal Services Authority.

(ii) Except Special Courts designated as Children‟s Court/POCSO Court, Trial Court while making the recommendation cannot quantify the quantum of compensation. POCSO Court is authorized by law laid down under Section 33(8) of the Protection of Children from Sexual Offences Act, 2012 to

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quantify the quantum.

(iii) The recommendation may be made for grant of compensation according to the Delhi Victim Compensation Scheme, 2018. The Legal Services Authority is not authorized to grant the compensation beyond the limit provided in the Scheme.

(iv) In matters resulting into acquittal or discharge, similar recommendation may be made in case the Trial Court feels the need of rehabilitation of the victim provided the victim can be considered as a victim of an offence as defined in the scheme.

(v) In cases of untraced matters or wherein the identity of the offender cannot be established, the victim/dependants may be referred to District Legal Services Authority to move an application for grant of compensation.

(vi) At any stage of the trial, Trial Court may also recommend/refer the matter for grant of Interim Compensation. The interim compensation can only be quantified by the POCSO Court.

(vii) The compensation can only be granted in the categories mentioned in the Schedule to the Scheme in Part-I and Part-II. The other matters cannot be considered. Legal Services Authorities are not authorized/ empowered to go beyond the Scheme.

(viii) Compensation may be recommended in State Cases i.e. matter on which cognizance has been taken on basis of Police Report (for Interim, this may be considered as Institution on basis of FIR) or on complaint cases (only when the accused has been summoned).

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(ix) In Part-I of the Scheme, it has been categorically provided that cases covered under the Motor Vehicles Act, 1988 wherein compensation is to be awarded by Motor Accidents Claims Tribunal, shall not be covered under the Scheme.

(x) In case the victim/dependents have already been granted compensation under any other governmental scheme, District Legal Services Authority does not have any authority to grant compensation under Part-I and under Part-II, the quantum so granted has to be considered/adjusted accordingly.

(xi) Under the purview of the Scheme as envisaged in Part-I, it is not the offence but the injury suffered by the victim which forms the basis of recommendation for grant of compensation.

(xii) The Scheme also provides for factors to be considered while awarding compensation in both Part-I and Part-II which have to be considered by the District Victim Compensation Committee for grant of compensation. In case, none of the factors are satisfied, the committee is not empowered to grant the compensation.

(xiii) The Scheme does not provide for compensation in case of loss of property rather it focuses on physical or mental injury sustained by victim and similarly by the dependents in case of loss of life. Therefore, the matter wherein the victim has suffered loss of only movable/immovable property may not be recommended/ referred for compensation.

93. The inquiry should be conducted by the DSLSA with the assistance of Delhi Police and the Inquiry Report with respect to the impact of the crime

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on the victim as well as with respect to the financial capacity of the accused be filed by DSLSA before the Court. It is submitted that the format of the affidavit of the victim with respect to the impact of the crime and the affidavit of the accused with respect to the financial capacity be formulated. The Court, after holding the accused guilty of offence, should direct the aforesaid affidavits to be filed within 10 days and DSLSA be directed to conduct a preliminary inquiry into the matter and submit a report to the Court within 30 days.

Submission of Mr. Kanhaiya Singhal, Advocate

94. The affidavit of the victim relating to the impact of crime and the affidavit of the accused with respect to his financial capacity be formulated and the same be called for by the Trial Court after the conviction of the accused. Mr. Singhal, ld. counsel for the appellants has suggested the formats of the affidavits in his written submissions.

Relevant Provisions of law

95. Constitution of India

Article 227 - Power of superintendence over all courts by the High Court

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provision, the High Court may:

a. call for returns from such courts;

b. make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

c. prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

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(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein: Provided that any rules made, forms prescribed, or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.

Article 235 - Control over subordinate courts The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

96. Code of Criminal Procedure

Section 194 - Additional and Assistant Sessions Judges to try cases made over to them An Additional Sessions Judge or Assistant Sessions Judge shall try such cases as the Sessions Judge of the division may, by general or special order, make over to him for trial or as the High Court may, by special order, direct him to try. Section 265 F - Judgment of the Court The Court shall deliver its judgment in terms of section 265E in the open Court and the same shall be signed by the presiding officer of the Court.

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Section 326 - Conviction or commitment on evidence partly recorded by one Magistrate and partly by another.

(1) Whenever any Judge or Magistrate, after having heard and recorded the whole or any part of the evidence in any inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Judge or Magistrate who has and who exercises such jurisdiction, the Judge or Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself: Provided that if the succeeding Judge or Magistrate is of opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of Justice, he may re-summon any such witness, and after such further examination, cross-examination and re-examination, if any, as he may permit, the witness shall be discharged.

(2) When a case is transferred under the provisions of this Code from one judge to another Judge or from one Magistrate to another Magistrate, the former shall be deemed to cease to exercise jurisdiction therein, and to be succeeded by the latter, within the meaning of sub-section (1).

(3) Nothing in this section applies to summary trials or to cases in which proceedings have been stayed under section 322 or in which proceedings have been submitted to a superior Magistrate under section 325.

Section 353 - Judgment (1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders,— (a) by delivering the whole of the judgment; or (b) by reading out the whole of the judgment; or (c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader.

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(2) Where the judgment is delivered under clause (a) of sub-section (1), the presiding officer shall cause it to be taken down in short-hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court. (3) Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of sub-section (1), as the case may be, it shall be dated and signed by the presiding officer in open Court, and if it is not written with his own hand, every page of the judgment shall be signed by him. (4) Where the judgment is pronounced in the manner specified in clause (c) of sub-section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost. (5) If the accused is in custody, he shall be brought up to hear the judgment pronounced. (6) If the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted: Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence. (7) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place. (8) Nothing in this section shall be construed to limit in any way the extent of the provisions of Section 465. Section 354 - Language and contents of judgment. (1) Except as otherwise expressly provided by this Code, every judgment referred to in Section 353,— (a) shall be written in the language of the Court;

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(b) shall contain the point or points for determination, the decision thereon and the reasons for the decision; (c) shall specify the offence (if any) of which, and the section of the Indian Penal Code (45 of 1860) or other law under which, the accused is convicted and the punishment to which he is sentenced; (d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty. Section 357 - Order to pay compensation:

(1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment, order the whole or any part of the fine recovered to be applied-

a) in defraying the expenses properly incurred in the prosecution;

b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a civil court;

c) when any person is convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death;

d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto.

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(2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal.

(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.

(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its powers of revision.

(5) At the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section.

Section 357A - Victim Compensation Scheme

(1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependent who has suffered loss or injury as a result of the crime and who require rehabilitation.

(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).

(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under Section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.

(4) Where the offender is not traced or identified, but the victim is identified, and where no trial takes place, the victim or his dependents may make an application to the State or the District Legal Services Authority for award of compensation.

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(5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services 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 the 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.

Section 407 - Power of High Court to transfer cases and appeals

(1) Whenever it is made to appear to the High Court:

(a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or

(b) that some question of law of unusual difficulty is likely to arise, or

(c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice,

it may order—

(i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;

(ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;

(iii) that any particular case be committed for trial to a Court of Session; or

(iv) that any particular case or appeal be transferred to and tried before itself.

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(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:

Provided that no application shall lie to the High Court for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.

(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.

(4) When such an application is made by an accused person, the High Court may direct him to execute a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).

(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least twenty-four hours have elapsed between the giving of such notice and the hearing of the application.

(6) Where the application is for the transfer of a case or appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:

(7) Provided that such stay shall not affect the subordinate Court‟s power of remand under Section 309.

(8) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.

(9) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.

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(10) Nothing in this section shall be deemed to affect any order of Government under Section 197

Section 460 - Irregularities which do not vitiate proceedings If any Magistrate not empowered by law to do any of the following things, namely:—

(a) to issue a search-warrant under Section 94;

(b) to order, under Section 155, the police to investigate an offence;

(d) to issue process under Section 187, for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction;

(e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190;

(f) to make over a case under sub-section (2) of Section 192;

(g) to tender a pardon under Section 306;

(h) to recall a case and try it himself under Section 410; or

(i) to sell property under Section 458 or Section 459,

erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. Section 461 - Irregularities which vitiate proceedings If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:—

(a) attaches and sells property under Section 83;

(b) issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority;

(d) demands security for good behaviour;

(e) discharges a person lawfully bound to be of good behaviour;

(f) cancels a bond to keep the peace;

(g) makes an order for maintenance;

(h) makes an order under Section 133 as to a local nuisance;

(i) prohibits, under Section 143, the repetition or continuance of a public nuisance;

(j) makes an order under Part C or Part D of Chapter X;

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(k) takes cognizance of an offence under clause (c) of sub-section (1) of Section 190;

(l) tries an offender;

(m) tries an offender summarily;

(n) passes a sentence, under Section 325, on proceedings recorded by another Magistrate;

(o) decides an appeal;

(p) calls, under Section 397, for proceedings; or

(q) revises an order passed under Section 446,

his proceedings shall be void. Section 462 - Proceedings in wrong place No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice. Section 465 - Finding or sentence when reversible by reason of error, omission or irregularity (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby. (2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Section 483 - Duty of High Court to exercise continuous superintendence over Courts of Judicial Magistrates

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Every High Court shall so exercise its superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates. Relevant Judgments Powers of the High Court

97. In Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104, the Supreme Court held that Article 227 of the Constitution confers the power of Superintendence to the High Courts, both on judicial and administrative side. Relevant portion of the said judgment is reproduced hereunder:

“20. We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution, and that superintendence is both judicial and administrative. That was held by this Court in Waryam Singh v. Amarnath [1954 SCR 565] where it was observed that in this respect Article 227 went further than Section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative, and that it restored the position under Section 107 of the Government of India Act, 1915. It may also be noted that while in a certiorari under Article 226 the High Court can only annul the decision of the Tribunal, it can, under Article 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for a writ of certiorari and for other reliefs was maintainable under Articles 226 and 227 of the Constitution.” (Emphasis Supplied)

98. In Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392, the Supreme Court dismissed the challenge to the transfer of a case by the High Court on administrative side holding that the High Court is empowered to transfer a case on administrative side as well as judicial side and both the powers

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coexist. Relevant portion of the said judgment is reproduced hereunder:

“13. …So long as power can be and is exercised purely for administrative exigency without impinging upon and prejudicially affecting the rights or interests of the parties to any judicial proceeding we do not find any reason to hold that administrative powers must yield place to judicial powers simply because in a given circumstance they coexist. On the contrary, the present case illustrates how exercise of administrative powers were more expedient, effective and efficacious. If the High Court had intended to exercise its judicial powers of transfer invoking Section 407 of the Code it would have necessitated compliance with all the procedural formalities thereof, besides providing adequate opportunities to the parties of a proper hearing which, resultantly, would have not only delayed the trial but further incarceration of some of the accused. It is obvious, therefore, that by invoking its power of superintendence, instead of judicial powers, the High Court not only redressed the grievances of the accused and others connected with the trial but did it with utmost dispatch.” (Emphasis Supplied) 99. In Achutananda Baidya v. Prafullya Kumar Gayen, (1997) 5 SCC 76, the Supreme Court held that the High Court has both administrative as well as judicial power of superintendence under Article 227 of the Constitution. Relevant portion of the judgment is as under:

“10. The power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review. The power and duty of the High Court under Article 227 is essentially to ensure that the courts and tribunals, inferior to High Court, have done what they were required to do. Law is well settled by various decisions of this Court that the High Court can interfere under Article 227 of the Constitution in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of

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law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice. As regards finding of fact of the inferior court, the High Court should not quash the judgment of the subordinate court merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Article 227 to interfere with the finding of fact if the subordinate court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse.”

100. In Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460, the Supreme Court rejected the challenge to the transfer of a case by the High Court on administrative side on the ground that the High Court can transfer the case by exercising its administrative power of superintendence under Article 227 read with Article 235 of the Constitution of India. Relevant portion of the said judgment is reproduced hereunder:

“21. The High Court does have the power to transfer the cases and appeals under Section 407 CrPC which is essentially a judicial power. Section 407(1)(c) CrPC lays down that, where it will tend to the general convenience of the parties or witnesses, or where it was expedient for the ends of justice, the High Court could transfer such a case for trial to a Court of Session. That does not mean that the High Court cannot transfer cases by exercising its administrative power of superintendence which is available to it under Article 227 of the Constitution of India. While repelling the objection to the exercise of this power, this Court observed in para 13 of Ranbir Yadav [Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392: 1995 SCC (Cri) 728] ……

22. For the reasons stated above, there is no substance in the objections raised by the petitioners. The High Court has looked into Section 407 CrPC, referred to Articles 227 and 235 of the Constitution of India, and thereafter in its impugned judgment

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[Kamlesh Kumar v. State of Jharkhand, WP (Cri) No. 95 of 2003, decided on 19-7-2012 (Jhar)] has observed as follows: “Having perused Section 407 CrPC and Articles 227 and 235, I have no hesitation to hold that this Court either on the administrative side or in the judicial side has absolute jurisdiction to transfer any criminal cases pending before one competent court to be heard and decided by another court within the jurisdiction of this Court. This Court in its administrative power can issue direction that cases of particular nature shall be heard by particular court having jurisdiction.” In view of what is stated earlier, we have no reason to take a view different from the one taken by the High Court. Both the special leave petitions (criminal) are, therefore, dismissed.”

101. In Ajay Singh v. State of Chhattisgarh, (2017) 3 SCC 330, the Supreme Court rejected the challenge to the transfer of a case by the High Court on administrative side. Relevant portion of the said judgment is reproduced hereunder:

“28. In the case at hand, the High Court on the administrative side had transferred the case to the learned Sessions Judge by which it has conferred jurisdiction on the trial court which has the jurisdiction to try the sessions case under CrPC. Thus, it has done so as it has, as a matter of fact, found that there was no judgment on record. There is no illegality. Be it noted, the Division Bench in the appeal preferred at the instance of the present appellants thought it appropriate to quash the order as there is no judgment on record but a mere order-sheet. In a piquant situation like the present one, we are disposed to think that the High Court was under legal obligation to set aside the order as it had no effect in law. The High Court has correctly done so as it has the duty to see that sanctity of justice is not undermined. The High Court has done so as it has felt that an order which is a mere declaration of result without the judgment should be nullified and become extinct.

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29. The case at hand constrains us to say that a trial Judge should remember that he has immense responsibility as he has a lawful duty to record the evidence in the prescribed manner keeping in mind the command postulated in Section 309 CrPC and pronounce the judgment as provided under the Code. A Judge in charge of the trial has to be extremely diligent so that no dent is created in the trial and in its eventual conclusion. Mistakes made or errors committed are to be rectified by the appellate court in exercise of “error jurisdiction”. That is a different matter. But, when a situation like the present one crops up, it causes agony, an unbearable one, to the cause of justice and hits like a lightning in a cloudless sky. It hurts the justice dispensation system and no one, and we mean no one, has any right to do so. The High Court by rectifying the grave error has acted in furtherance of the cause of justice. The accused persons might have felt delighted in acquittal and affected by the order of rehearing, but they should bear in mind that they are not the lone receivers of justice. There are victims of the crime. Law serves both and justice looks at them equally. It does not tolerate that the grievance of the victim should be comatosed in this manner.”

102. In S. J. Chaudhri v. State, 2006 SCC OnLine Del 797, the Division Bench of this Court rejected the challenge to the transfer of a case by the High Court from one Session to another on administrative side. Relevant portion of the said judgment is as under:-

“6. … this is not a case of transfer simplicitor from one Sessions Judge to another, but a case where arguments stand more or less concluded in the Court of a particular Sessions Judge and the Chief Justice on the administrative side has deemed it expedient, for the ends of justice, to order that the Sessions Judge who has heard the arguments in extenso pronounce judgment in the case.

7. We say so on the basis of the records which have been scrutinized by us, and on such scrutiny it was found by us that arguments in the case had been heard by Ms. Mamta Sehgal,

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Additional Sessions Judge on more than thirty different dates, i.e. on 27.10.2004, 1.11.2004, 14.12.2004, 15.12.2004, 16.12.2004, 31.1.2005, 1.2.2005, 18.2.2005, 24.2.2005, 28.2.2005, 1.3.2005, 10.3.2005, 17.3.2005, 22.3.2005, 23.3.2005, 19.4.2005, 21.4.2005, 25.4.2005, 8.7.2005, 22.7.2005, 26.7.2005, 27.7.2005, 9.8.2005, 24.8.2005, 25.8.2005, 20.9.2005, 21.9.2005, 28.9.2005, 31.10.2005, 9.11.2005 and 18.11.2005. To say that arguments had been more or less completed cannot, in such circumstances, be stated to be incorrect. This being the position and the complainant (father of the deceased) being over 90 years of age, in our considered opinion, it cannot be said that the orders passed by the Hon'ble Chief Justice on the administrative side were uncalled for or in any manner prejudicial to the petitioner/accused. 8. In Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392, the High Court had exercised the power of transfer on the petition filed by the accused from jail, inter alia, complaining that they could not be accommodated in the Court room as a result of which some of them had to remain outside. This order was challenged before the Supreme Court on the ground that administrative power could not be exercised when judicial power was not only available and operational, but was equally effective and efficacious. The Supreme Court held that so long as power can be and is exercised purely for administrative exigency without impinging upon and prejudicially affecting the rights or interests of the parties to any judicial proceedings, it could not be said that administrative powers must yield to judicial powers simply because they happened to co-exist in a given case.

9. Applying the ratio of the decision in Ranbir Yadav's case (supra), it cannot be said that the exercise of administrative power in the instant case by the head of the High Court was not supported by any good or cogent reason or that the same was vexatious to the accused in any manner. Here is a case where the father of the deceased has been in pursuit of justice for the last 23 years. He is over 94 years of age and has yet to come to terms with his son's brutal murder. Arguments have been heard

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at length on over 30 dates by a Sessions Judge with whom the case has been pending for the last over 5 years. Yet the course of justice is sought to be obstructed by the present transfer petition praying for re-transfer of the case to a Sessions Judge who will have to hear arguments from the scratch. Should such a prayer be entertained at the behest of the accused? We are of the considered view that the answer to this must be in the negative, for, in our view, any exercise of powers as contained under Sections 407 and 482 of the Code of Criminal Procedure for the aforesaid purpose would not only further delay the disposal of the case, which has been pending already for over 23 years, but would cause untold hardship to the complainant, apart from the fact that the State through the CBI would have to de novo argue the matter.

10. Before parting with the order, we deem it expedient to refer to the contention of the petitioner that fair and impartial justice will not be done to him if the matter is heard and decided by Ms. Mamta Sehgal. To say the least, we find no reason for such an apprehension on the part of the petitioner. Merely for the petitioner to allege that he will not get impartial justice, to our mind, is wholly insufficient. The question really is whether the petitioner can be said to entertain reasonably an apprehension that he would not get justice. It is not any and every apprehension in the mind of the accused that can be termed as reasonable apprehension. Apprehension must not only be entertained, but must also appear to the Court to be reasonable and justified by facts and circumstances. Facts and circumstances are otherwise. The petitioner did not entertain any apprehension from the year 2001 when the matter was posted with Ms. Mamta Sehgal, Additional Sessions Judge till the year 2006 when her posting was changed. But now all of a sudden he expresses apprehension that the learned Additional Sessions Judge may not render impartial justice. Can his apprehension be termed a reasonable one? In the attendant circumstances and in view of the fact that no case of any real bias has been made out by him, the answer to this question must be in the negative. It cannot be also lost sight of that though assurance of a fair trial is the final imperative of the

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dispensation of justice, hyper-sensitivity cannot be allowed to impede the course of justice to such an extent that the resultant delay results in failure of justice. Also, normally the complainant has a right to choose any Court having jurisdiction and the accused cannot dictate where the case against him should be tried.”

103. In Willie (William) Slaney v. State of M.P., (1955) 2 SCR 1140, the Supreme Court held that every error or omission in the trial would not vitiate the trial unless the accused can show substantial prejudice. Relevant portion of the judgment is reproduced hereunder:-

“5. … the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent court, if he is told and clearly understands the nature of the offence for which he is being tried, if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself, then, provided there is substantial compliance with the outward forms of the law, mere mistakes in procedure, mere inconsequential errors and omissions in the trial are regarded as venal by the Code and the trial is not vitiated unless the accused can show substantial prejudice. That, broadly speaking, is the basic principle on which the Code is based. xxx xxx xxx 8. Next comes a class of case for which there is no express provision in the Code, or where there is ambiguity. In that event, the question is whether the trial has been conducted in substantial compliance with the Code or in a manner substantially different from that prescribed.

“When a trial is conducted in a manner different from that prescribed by the Code (as in N.A.

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Subramania Iyer case [(1901) LR 28 IA 257, 263], the trial is bad and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537, and nonetheless so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code”. Pulukuri Kotayya v. King-Emperor [(1947) LR 74 IA 65, 75]. 9. Now it is obvious that the question of curing an irregularity can only arise when one or more of the express provisions of the Code is violated. The question in such cases is whether the departure is so violent as to strike at the root of the trial and make it no trial at all or is of a less vital character. It is impossible to lay down any hard and fast rule but taken by and large the question usually narrows down to one of prejudice. In any case, the courts must be guided by the plain provisions of the Code without straining at its language wherever there is an express provision. 10. For a time it was thought that all provisions of the Code about the mode of trial were so vital as to make any departure therefrom an illegality that could not be cured. That was due to the language of the Judicial Committee in N.A. Subramania Iyer v. King-Emperor [(1938) 65 AIR 158, 175]. 11. Later, this was construed to mean that that only applies when there is an express prohibition and there is prejudice. In Subramania Iyer case [(1901) LR 28 IA 257, 263] the Privy Council said:

“The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted

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that this contravention of the Code comes within the description of error, omission or irregularity.” This was examined and explained in Abdul Rahman v. King-Emperor (1926) LR 54 IA 96, 109 as follows: “The procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused.” 12. …………Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow him to defend himself, a refusal to explain the nature of the charge to him and so forth. These go to the foundations of natural justice and would be struck down as illegal forthwith. It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land, because either way they would be struck down at once. Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice. In still another class of case, the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused. xxx xxx xxx 15…The real question is not whether a matter is expressed positively or is stated in negative terms but whether disregard of a particular provision amounts to substantial denial of a trial as contemplated by the Code and understood by the comprehensive expression “natural justice”. xxx xxx xxx

17. This, we feel, is the true intent and purpose of Section 537(a) which covers every proceeding taken with jurisdiction in the general phrase “or other proceedings under this Code”. It

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is for the Court in all these cases to determine whether there has been prejudice to the accused; and in doing so to bear in mind that some violations are so obviously opposed to natural justice and the true intendment of the Code that on the face of them and without anything else they must be struck down, while in other cases a closer examination of all the circumstances will be called for in order to discover whether the accused has been prejudiced.” Concept of „Illegality‟ and „Irregularity‟ in CrPC

104. In Pulukuri Kotayya v. King-Emperor, (1948) LR 74 IA 65, the Privy Council held that the distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind. Relevant portion of the judgment is reproduced hereunder:

“…but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under s. 537, and none the less so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind.” (Emphasis Supplied)

105. In Willie (William) Slaney v. State of M.P. (supra), the Constitution Bench of the Supreme Court held that the irregularity is curable if it has not resulted in failure of justice but the irregularity is not curable if it has resulted in failure of justice. Relevant portion of the said judgment is reproduced hereunder:

“31. The sort of problem that we are now examining can only arise when an express provision of the Code is violated and then the root of the matter is not whether there is violation of an express provision, for the problem postulates that there must be, nor is it whether the provision is expressed in positive or in

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negative terms, but what are the consequences of such disregard. Does it result in an illegality that strikes at the root of the trial and cannot be cured or is it an irregularity that is curable? 32. We have used the terms “illegality” and “irregularity” because they have acquired a technical significance and are convenient to demarcate a distinction between two classes of case. They were first used by the Privy Council in N.A. Subramania Iyer v. King-Emperor [(1901) LR 28 IA 257] and repeated in Babulal Choukhani v. King-Emperor [(1938) LR 65 IA 158, 174] and in Pululkuri Kotayya v. King-Emperor [(1947) LR 74 IA 65, 75] but it is to be observed that the Code does not use the term “illegality”. It refers to both classes as “irregularities”; some vitiate the proceedings (Section 530) and others do not (Section 529). Proceedings that come under the former head are “void”. Section 535 uses the words “shall be deemed invalid” which indicate that a total omission to frame a charge would render the conviction invalid but for Section 535 which serves to validate it when that sort of “irregularity” has not occasioned a “failure of justice”. Section 537 does not use any of these expressions but merely says that no conviction or sentence “shall be reversed or altered” unless there has in fact been a failure of justice.

33. We do not attach any special significance to these terms. They are convenient expressions to convey a thought and that is all. The essence of the matter does not lie there. It is embedded in broader considerations of justice that cannot be reduced to a set formula of words or rules. It is a feeling, a way of thinking and of living that has been crystallized into judicial thought and is summed up in the admittedly vague and indefinite expression “natural justice”: something that is incapable of being reduced to a set formula of words and yet which is easily recognizable by those steeped in judicial thought and tradition. In the end, it all narrows down to this: some things are “illegal”, that is to say, not curable, because the Code expressly makes them so; others are struck down by the good sense of Judges who, whatever expressions they may use, do so because those things occasion prejudice and offend their sense of fair play and

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justice. When so struck down, the conviction is “invalid”; when not, it is good whatever the “irregularity”. It matters little whether this is called an “illegality”, an “irregularity” that cannot be cured or an “invalidity”, so long as the terms are used in a clearly defined sense.” Concept of “Failure of Justice”

106. In Darbara Singh v. State of Punjab, (2012) 10 SCC 476, the accused challenged the conviction under Section 302 IPC on the ground of defect of framing of charges. The Supreme Court rejected the challenge on the ground that there was no failure of justice. The Supreme Court held that “Failure of Justice” means serious prejudice caused to the accused. Relevant portion of the judgment is reproduced hereunder:

“21. “Failure of justice” is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be “failure of justice”; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be overemphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under the Indian criminal jurisprudence. “Prejudice” is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under criminal jurisprudence, then the accused can seek benefit under the orders of the court.”

107. In Willie (William) Slaney (supra), the Supreme Court held that the

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irregularities relating to the charge would not vitiate the conviction if the accused knew what he was being tried for; main facts sought to be established against him were explained to him clearly and fairly; and if he was given a full and fair chance to defend himself. Relevant portion of the said judgment is reproduced hereunder:

“43… But when all is said and done, what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown, the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one.” (Emphasis Supplied)

108. In State of M.P. v. Bhooraji, (2001) 7 SCC 679, the Supreme Court held that the irregularity of the Sessions Court taking cognizance of the offence without the case being committed has not caused any prejudice to the accused. The Supreme Court further held that any de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It should be limited to the extreme exigency to avert “a failure of justice”. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. Relevant portion of the said judgment is reproduced hereunder:

“8…. A de novo trial should be the last resort and that too only when such a course becomes so desperately indispensable. It should be limited to the extreme exigency to avert “a failure of justice”. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de novo trial. This is because the appellate court has plenary powers for revaluating and reappraising the evidence and even to take additional evidence by the appellate court

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itself or to direct such additional evidence to be collected by the trial court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings, by bringing down all the persons to the court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting “a failure of justice”. The superior court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the trouble to reach the court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation.” xxx xxx xxx “17. It is an uphill task for the accused in this case to show that failure of justice had in fact occasioned merely because the specified Sessions Court took cognizance of the offences without the case being committed to it. The normal and correct procedure, of course, is that the case should have been committed to the Special Court because that court being essentially a Court of Session can take cognizance of any offence only then. But if a specified Sessions Court, on the basis of the legal position then felt to be correct on account of a decision adopted by the High Court, had chosen to take cognizance without a committal order, what is the disadvantage of the accused in following the said course?”

109. In Hanumant Dass v. Vinay Kumar, (1982) 2 SCC 177, the Supreme Court rejected the challenge to the conviction on the ground that the case was transferred to a Court which did not have territorial jurisdiction as it has not resulted in failure of justice. Relevant portion of the said judgment is

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reproduced hereunder:-

“16. Assuming for the sake of argument, that there were certain irregularities in the procedure the judgment of the High Court could not be set aside unless it was shown by the appellant that there has been failure of justice… 17. We have perused the judgment of the High Court which was placed before us in full. It shows that each and every aspect of the matter has been thoroughly discussed and the High Court has also referred to the error committed by the Sessions Judge in the approach of the case and also in making unwarranted assumptions.” (Emphasis Supplied) Section 462 CrPC protects the irregularity pertaining to lack of jurisdiction

110. In State of Karnataka v. Kuppuswamy Gownder, (1987) 2 SCC 74, the matter was transferred after framing of charge by the Principal Sessions Judge from one Sessions Judge to another by a distribution memo without an order under Sections 407 or 194 CrPC. The High Court set aside the conviction on the ground of irregularity which was challenged before the Supreme Court. The Supreme Court held that the irregularity in the procedure has not resulted in failure of justice and therefore, the conviction cannot be set aside. Relevant portion of the said judgment is reproduced hereunder:

“14. The High Court, however, observed that provisions of Section 465 CrPC cannot be made use of to regularise this trial. No reasons have been stated for this conclusion. Section 465 CrPC reads as under… xxx xxx xxx

It is provided that a finding or sentence passed by a court of competent jurisdiction could not be set aside merely on the ground of irregularity if no prejudice is caused to the accused. It is not disputed that this question was neither raised by the

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accused at the trial nor any prejudice was pleaded either at the trial or at the appellate stage and therefore in absence of any prejudice such a technical objection will not affect the order or sentence passed by competent court. Apart from Section 465, Section 462 provides for remedy in cases of trial in wrong places. Section 462 reads as under… …This provision even saves a decision if the trial has taken place in a wrong Sessions Division or sub-division or a district or other local area and such an error could only be of some consequence if it results in failure of justice, otherwise no finding or sentence could be set aside only on the basis of such an error. 15. It is therefore clear that even if the trial before the III Additional City Civil and Sessions Judge would have in a Division other than the Bangalore Metropolitan Area for which III Additional City Civil and Sessions Judge is also notified to be a Sessions Judge still the trial could not have been quashed in view of Section 462. This goes a long way to show that even if a trial takes place in a wrong place where the court has no territorial jurisdiction to try the case still unless failure of justice is pleaded and proved, the trial cannot be quashed. In this view of the matter therefore reading Section 462 alongwith Section 465 clearly goes to show that the scheme of the Code of Criminal Procedure is that where there is no inherent lack of jurisdiction merely either on the ground of lack of territorial jurisdiction or on the ground of any irregularity of procedure an order or sentence awarded by a competent court could not be set aside unless a prejudice is pleaded and proved which will mean failure of justice. But in absence of such a plea merely on such technical ground the order or sentence passed by a competent court could not be quashed.” (Emphasis Supplied)

111. In Purushottamdas Dalmia v. State of W.B., (1962) 2 SCR 101, the conviction was challenged by the accused on the ground that the offence was not committed within the territorial limits of the Court which convicted him. The Supreme Court held that there are two types of jurisdiction. First, being

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the power of the Court to try particular kind of offences and the second being territorial jurisdiction attached to various courts for the sake of convenience. The Supreme Court emphatically held that if a Court has no jurisdiction to try a particular offence, then it would amount to be a flagrant violation, which would render the entire trial void. However, similar importance is not attached to an irregularity which arises due to territorial jurisdiction of a Court. The Supreme Court further held that territorial jurisdiction is provided just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused who will have to meet the charge leveled against him and the convenience of the witnesses who have to appear before the court. It is therefore provided in Section 177 CrPC that an offence would ordinarily be tried by a court within the local limits of whose jurisdiction it is committed. Relevant portion of the said judgment is reproduced hereunder:

“13. It is true that the legislature treats with importance the jurisdiction of courts for the trial of offences. Jurisdiction of courts is of two kinds. One type of jurisdiction deals with respect to the power of the courts to try particular kinds of offences. That is a jurisdiction which goes to the root of the matter and if a court not empowered to try a particular offence does try it, the entire trial is void. The other jurisdiction is what may be called territorial jurisdiction. Similar importance is not attached to it. This is clear from the provisions of Sections 178, 188, 197(2) and 531 CrPC. Section 531 provides that:

“No finding, sentence or order of any criminal court shall be set aside merely on the ground that the enquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or

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other local area, unless it appears that such error has in fact occasioned a failure of justice.” The reason for such a difference in the result of a case being tried by a court not competent to try the offence and by a court competent to try the offence but having no territorial jurisdiction over the area where the offence was committed is understandable. The power to try offences is conferred on all courts according to the view the legislature holds with respect to the capability and responsibility of those courts. The higher the capability and the sense of responsibility, the larger is the jurisdiction of those courts over the various offences. Territorial jurisdiction is provided just as a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular court, the convenience of the accused who will have to meet the charge levelled against him and the convenience of the witnesses who have to appear before the court. It is therefore that it is provided in Section 177 that an offence would ordinarily be tried by a court within the local limits of whose jurisdiction it is committed.”

112. In Ram Chandra Prasad v. State of Bihar, (1962) 2 SCR 50, the Supreme Court rejected the objection that the Court did not have territorial jurisdiction on the ground that it has not resulted in failure of justice. Relevant portion of the said judgment is reproduced hereunder:

“8. In view of Section 531 of the code of Criminal Procedure, the order of the Special Judge, Patna, is not to be set aside on the ground of his having no territorial jurisdiction to try this case, when no failure of justice has actually taken place. It is contended for the appellant that Section 531 of the Code of Criminal Procedure is not applicable to this case in view of sub-section (1) of. Section 7 and Section 10 of the Criminal Law Amendment Act. We do not agree. The former provision simply lays down that such offences shall be triable by Special Judges and this provision has not been offended against. Section 10 simply provides that the cases triable by a Special Judge under Section 7 and pending before a Magistrate

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immediately before the commencement of the Act shall be forwarded for trial to the Special Judge having jurisdiction over such cases. There is nothing in this section which leads to the non-application of Section 531 of the Criminal Procedure Code.” 113. In Padam Singh Thakur v. Madan Chauhan, 2016 SCC OnLine HP 4260, the conviction was challenged on the ground that the case was adjudicated by the Judicial Magistrate, Shimla whereas it should have been tried by the Judicial Magistrate, Theog. The Himachal Pradesh High Court rejected the challenge on the ground that no prejudice whatsoever has been caused to the accused. The Himachal Pradesh High Court held that Section 462 CrPC saves the judgments if the trial took place in a wrong Sessions Division. Relevant portion of the judgment is as under: “The expression “failure of justice” would appear, sometimes, as an etymological chameleon. The Court has to examine whether it is really a failure of justice or whether it is only a camouflage. Justice is a virtue which transcends all barriers. Neither the rules of procedure, nor (sic) technicalities of law can stand in its way. Even the law bends before justice. The order of the court should not prejudicial to anyone…….Law is not an escape route for law breakers. If this is allowed, this may lead to greater injustice than upholding the rule of the law. The guilty man, therefore, should be punished, and in case substantial justice has been done, it should be defeated when pitted against technicalities.” Procedure in Criminal Cases

114. In Bharti Arora v. State of Haryana, (2011) 1 RCR (Cri) 513 (2), the Trial Judge prepared and signed a judgment but could not pronounce as the accused did not appear before the court, despite various adjournment being taken on multiple dates. The Trial Judge signed the judgement and kept the

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judgment in a sealed cover to be pronounced by the successor Judge. The successor Judge later pronounced the judgment. The Punjab and Haryana High Court held that failure to comply with Section 353 is a procedural irregularity which is curable unless it occasions failure of justice. Relevant portion of the judgment is reproduced hereunder:

“54. Considering the provisions of Sections 353(7) and 465, Code of Criminal Procedure, collectively, it transpires that the Presiding Officer was within the ambit of propriety to have pronounced the judgment there, and then on any of the dates after 22.5.2008. By 22.5.2008, all the proceedings had-concluded, including final arguments and the case had been-fixed for passing of orders for 24.5.2008. The petitioner, while giving one excuse after another, did not appear thereby frustrating the process of Court and process of law, on account of which the impugned order has been, passed. 55. Considering the provisions of Section 353, Code of Criminal Procedure, I find that there was no bar, prohibition, hindrance or obstacle for the trial Court to have adopted the measure adopted by it. As held above, the judgment could have been pronounced in the presence of the Counsel for the petitioner. Conceivably, misconstruing the provisions of Section 353, Code of Criminal Procedure, the trial Court adopted the procedure of signing the judgment and affixing a date thereon and putting it in a sealed cover, to be pronounced by the successor Presiding Officer. There being no provision debarring the trial Court from adopting the procedure, I find no illegality in the conduct of the trial Court. The proceedings had concluded, the order had been prepared and was only to be pronounced, after affixing the signatures by the Presiding Officer. xxx xxx xxx

73. From the Jaw, as noticed above, it also follows that the judgment of the trial Court represents finalisation of trial of an accused. The Code of Criminal Procedure contemplates that the judgment should be complete in all respects at the time of pronouncement. At that stage, all that is required of the

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Presiding Officer is that he should insert a date and append his signatures at the time of pronouncement. On pronouncement of the judgment, a copy is required to be supplied to the accused, without delay. The Code of Criminal Procedure is essentially a Code like all other procedural laws designed to further the ends of justice and not to frustrate them by introduction of endless technicalities. The object of the Code is to ensure for the accused a full and fair trial in accordance with principles of natural justice. If there be substantial compliance with the requirements of law, a mere procedural irregularity would not vitiate the trial unless the same results (sic) in miscarriage of justice. In all procedural laws certain things are vital. Disregard of a provision in respect of those procedural laws would prove fatal to the trial and would invalidate the conviction. However, other requirements might not be so vital. Noncompliance with those procedures would be only an irregularity, which would be curable unless it has resulted in failure of justice. 74. When a Judicial Officer signs the order or judgment, it becomes final so far as he is concerned. Pronouncement in open Court, thereafter, remains only a formality by which the concerns persons would get notice of the disposal of the case and result of the trial.

75. When something requires to be done in the end of justice in the absence of specific statutory provision, the approach of the subordinate Courts should not be to plead helplessness on the ground that specific provision authorising the requisite action is lacking. Since there is no statutory prohibition that prevents the Court from adopting a procedure in the interest of justice, the trial Court should adopt the procedure. The Courts have to deal with contingencies not contemplated by the framers of the Code of Criminal Procedure. To, achieve the ends of justice, the needful is required to be done, however, it should be ensured that serious prejudice is not caused to the parties. There is no legal prohibition that says that a judgment or order in a criminal case prepared and signed by a Judicial Officer could be pronounced only by him. When pronouncement of judgment or order is necessary, there is no provision which

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prohibits the successor Officer pronouncing the same in Court. Such a course does not cause prejudice to anybody, rather, it accelerates dispensation of justice. Pronouncement of an order by successor Presiding Officer would not in anyway prejudice the accused in the conduct of the case. It is merely an irregularity completely covered by the provisions of Section 465, Code of Criminal Procedure. xxx xxx xxx 78. A combined reading of sub-Sections (7) and (8) of Section 353, Code of Criminal Procedure, indicates that non-compliance with provisions of Section 353, Code of Criminal Procedure, would not render valid until and unless it occasions failure of justice. To obtain the benefit of noncompliance of Section 353, Code of Criminal Procedure, it would be incumbent on the accused to prove the prejudice caused to him' by such non-compliance. This is what has been held in the law, referred to above. The principle of law which emerges is that mere non-compliance of Section 353. Code of Criminal Procedure, which requires a Judge to pronounce and sign the judgment in open Court, will not render the judgment illegal. Procedural irregularity is curable.” De facto Doctrine 115. In Gokaraju Rangaraju v. State of A.P., (1981) 3 SCC 132, while considering the effect of the judgments pronounced by judges whose appointments were quashed by the Court subsequent to the pronouncement of judgments. The Court resorted to the de facto doctrine and held: “17. A judge, de facto, therefore, is one who is not a mere intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent

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needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judged title to his office cannot be brought into jeopardy in that fashion. Hence the Rule against collateral attack on validity of judicial appointments. To question a judged appointment in an appeal against his judgment is, of course, such a collateral attack. 18. … The twentieth amendment of the Constitution is an instance where the de facto doctrine was applied by the constituent body to remove any suspicion or taint of illegality or invalidity that may be argued to have attached itself to judgments, decrees, sentences or orders passed or made by certain District Judges appointed before 1966, otherwise than in accordance with the provision of Article 233 and Article 235 of the Constitution. The twentieth amendment was the consequence of the decision of the Supreme Court in Chandra Mohan v. State of U.P. [AIR 1966 SC 1987: (1967) 1 SCR 77: (1967) 1 LLJ 412] that appointments of District Judges made otherwise than in accordance with the provisions of Articles 233 and 235 were invalid…. 19. In our view, the de facto doctrine furnishes an answer to the submissions of Shri Phadke based on Section 9 of the Criminal Procedure Code and Article 21 of the Constitution. The judges who rejected the appeal in one case and convicted the accused in the other case were not mere usurpers or intruders but were persons who discharged the functions and duties of judges under colour of lawful authority. We are concerned with the office that the Judges purported to hold. We are not concerned with the particular incumbents of the office. So long as the office was validly created, it matters not that the incumbent was

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not validly appointed. A person appointed as a Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, would be exercising jurisdiction in the Court of Session and his judgments and orders would be those of the Court of Session. They would continue to be valid as the judgments and orders of the Court of Session, notwithstanding that his appointment to such Court might be declared invalid. On that account alone, it can never be said that the procedure prescribed by law has not been followed. It would be a different matter if the constitution of the court itself is under challenge. We are not concerned with such a situation in the instant cases. We, therefore, find no force in any of the submissions of the learned Counsel.”

116. In Surendra Singh v. State of Uttar Pradesh, AIR 1954 SC 194, the case was heard by a Bench of two judges and the judgment was signed by both of them but one of the Judges expired before the pronouncement of the judgment in the Court. The judgment was subsequently pronounced by one of the Judges. The Supreme Court held the judgment to be valid having been pronounced in terms of Section 353 CrPC. Relevant portion of the said judgment is as under:

“11. An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. We lay no stress on the mode of manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open court. But however, it is done it must be an expression of the mind of the court at the time of delivery. We say this because that is the first judicial act touching the judgment which the court performs after the hearing. Everything else up till then is done out of court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among themselves and reach a tentative conclusion. That is not their judgment. They may write and exchange drafts. Those are not the judgments either, however heavily and often they may have been signed. The final operative act is that which is formally declared in

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open court with the intention of making it the operative decision of the court. That is what constitutes the "judgment".” Findings

117. Article 227 of the Constitution empowers the High Court with the superintendence over all the Courts and Tribunals throughout its territory. The power of superintendence under Article 227 includes the administrative as well as judicial superintendence i.e. the High Court can transfer a case by exercising its administrative power of superintendence or its judicial power of superintendence. Articles 227 and 235 of the Constitution empowers the High Court to have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction and control over subordinate Courts including matters with respect to the posting and promotion of Judicial Officers.

118. Code of Criminal Procedure vests plenary powers in the High Court relating to the superintendence over the subordinate Courts including the appointment, posting, promotion and transfer of the judicial officers. Section 33 provides that the Judicial Officers shall have the powers conferred upon them by High Court and High Court is empowered to withdraw the powers conferred on any officer. Section 194 empowers the High Court to direct a Sessions Judge to try a particular case. Section 407 empowers the High Court to transfer the cases on judicial side and Section 483 empowers the High Court to transfer the cases on the administrative side. Section 482 vests inherent power in the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. Section 483 empowers the High Court to exercise superintendence over the subordinate judiciary.

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Rule 3, Part B of Chapter 26 of Delhi High Court Rules empowers the High Court to transfer the cases on administrative grounds. To summarize, the High Court has both judicial as well as administrative power to regulate administration of justice.

119. Chapter XXXV of the Code of Criminal Procedure protects the irregularities in procedure unless it has resulted in failure of justice. Section 460 protects irregularities which do not vitiate the proceedings whereas Section 461 lists out irregularities which vitiate proceedings. Section 462 protects judgment given by a Criminal Court in a proceeding which took place in a wrong jurisdiction unless it has resulted in failure of justice. Section 465 protects the irregularities in the complaint, summons, warrants, proclamation, order, judgment or other proceedings before or during trial unless there has been failure of justice. “Failure of Justice” means serious prejudice caused to the accused.

120. Section 465 CrPC protects the findings, sentence or order in respect of an irregularity and not an illegality. Illegality is a defect which strikes at the very substance of justice such as refusal to give accused a hearing, refusal to allow the accused to defend himself, refusal to explain the charge to the accused and such illegalities are not protected by Section 465. The distinction between an illegality and an irregularity is one of degree rather than of kind.

121. There are two types of jurisdictions of a Criminal Court, namely, (i) the jurisdiction with respect to the power of the Court to try particular kinds of offences, and (ii) the territorial jurisdiction. While the former goes to the root of the matter and any transgression makes the entire trial void, the latter is not of a peremptory character and is curable under Section 462 CrPC.

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Territorial jurisdiction is a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular Court, the convenience of the accused who will have to meet the charge leveled against him and the convenience of the witnesses who have to appear before the Court.

122. The Scheme of the Code of Criminal Procedure is that where there is no inherent lack of jurisdiction, an order or sentence awarded by a competent Court cannot be set aside either on the ground of lack of territorial jurisdiction or on the ground of any irregularity of procedure unless prejudice is pleaded and proved which means failure of justice.

123. The Code of Criminal Procedure does not impose a bar on pronouncement of orders/judgments by the Judge who recorded the entire evidence and heard the matter or who heard the matter finally after evidence was recorded by someone else, merely because the said Judge has been transferred to another Court.

124. Note 2 appended to the transfer order dated 13th March, 2020 whereby the High Court directed the judicial officers to pronounce judgment /order in reserved matters notwithstanding their transfer, has been issued by the High Court in exercise of the general power of superintendence over all subordinate Courts under Articles 227 and 235 of the Constitution. Note 2 appended to the transfer order dated 13th March, 2020 is declared to be legal and valid.

125. Notwithstanding the validity of Note 2, the impugned judgment of conviction is protected by Section 462 of the Code of Criminal procedure. Section 462 protects the judgment given by a Criminal Court in a proceeding which took place in a wrong jurisdiction unless any prejudice is pleaded and

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proved. There has been no prejudice to the accused in the present case.

126. The impugned judgment is also protected by the de facto doctrine based on necessity and public policy.

127. In Jitender‟s case (supra), Note 2 of the transfer order was not under challenge. In that case, the Division Bench was considering the validity of a judgment dictated and signed by the predecessor Judge but „announced‟ by the successor Judge. The Division Bench held the pronouncement of the judgment by the successor Judge to be illegal for being in violation of Section 353 CrPC. While doing so, the Division Bench also commented on the validity of Note 2 which was not in issue before the Division Bench. The Division Bench observed that an administrative order cannot override the statutory provisions of CrPC. However, the Division Bench did not consider Articles 227 and 235 of the Constitution. The validity of Note 2 had to be seen under Articles 227 and 235 of the Constitution which was not considered. The Division Bench also did not consider Section 462 CrPC which clearly protects a judgment/order on account of lack of territorial jurisdiction unless it has resulted in failure of justice. The attention of the Division Bench was not drawn to the Supreme Court judgment in State of Karnataka v. Kuppuswamy Gownder (supra) on the scope of Section 462 where the trial takes at a wrong place. The well established de facto doctrine was also not considered by the Division Bench. Before deciding the validity of Note 2, the notice to the High Court was paramount. However, no notice was issued to the High Court on the administrative side before considering the validity of Note 2. Given an opportunity, the High Court could have defended Note 2 being an administrative order passed in exercise of superintendence under Articles 227 and 235 of the Constitution. We

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therefore, respectfully disagree with the findings of the Division Bench relating to Note 2.

128. In the present case, ld. Addl. Sessions Judge concluded the hearing of the oral arguments on 06th March, 2020 when he reserved the judgment. The Ld. Addl. Sessions Judge pronounced the judgment in open Court on 09th July, 2020. The pronouncement of the judgment by the ld. Addl. Sessions Judge is in terms of Section 353 CrPC. The delay of over four months in delivering the judgment by the ld. Addl. Sessions Judge is a mere irregularity since it has not caused any prejudice to the accused and is, therefore, curable.

Victimology

129. Victims are unfortunately the forgotten people in the criminal justice delivery system. The criminal justice system tends to think more of the rights of the offender than that of relief to the victims. The anxiety shown to highlight the rights of the offender is not shown in enforcing law relating to compensation for the victim, which too has a social purpose to serve.

130. The Court has to take into consideration the effect of the offence on the victim's family even though human life cannot be restored, nor can its loss be measured by the length of a prison sentence. No term of months or years imposed on the offender can reconcile the family of a deceased victim to their loss, nor will it cure their anguish but then monetary compensation will at least provide some solace.

131. In Rattan Singh v. State of Punjab, (1979) 4 SCC 719, Krishna Iyer J., held that it is a weakness of our jurisprudence that the victims of the crime do not attract the attention of law. The relevant portion of the judgment is reproduced hereunder:-

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“6. The victimisation of the family of the convict may well be a reality and is regrettable. It is a weakness of our jurisprudence that the victims of the crime, and the distress of the dependants of the prisoner, do not attract the attention of the law. Indeed, victim reparation is still the vanishing point of our criminal law! This is a deficiency in the system which must be rectified by the legislature. We can only draw attention to this matter. Hopefully, the welfare State will bestow better thought and action to traffic justice in the light of the observations we have made.” (Emphasis supplied)

132. In Maru Ram v. Union of India, (1981) 1 SCC 107, Krishna Iyer J., held that while social responsibility of the criminal to restore the loss or heal the injury is a part of the punitive exercise, the length of the prison term is no reparation to the crippled or bereaved but is futility compounded with cruelty. Victimology must find fulfillment, not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted not by giving more pain to the offender but by lessening the loss of the forlorn.

133. In Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263, the Supreme Court held that the criminal trial is meant for doing justice to all - the accused, the society and the victim, then alone can law and order can be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that the guilty man does not escape.

134. In State of Gujarat v. Hon'ble High Court of Gujarat, (1998) 7 SCC 392, the Supreme Court suggested that the State should make a law for setting apart a portion of wages earned by prisoners to be paid as compensation to victims of the offence, the commission of which entailed a sentence of imprisonment to the prisoner, either directly or through a common fund to be created for this purpose or in another feasible mode. The

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entitlement of reparation, restitution and safeguarding of the rights of the victim was noted. It was pointed out that if justice was not done to the victim of the crime, criminal justice would look hollow. Reiterating that a life which is lost or snuffed out could not be recompensed, that monetary compensation would at least provide some solace, the Supreme Court observed as follows:

“46. One area which is totally overlooked in the above practice is the plight of the victims. It is a recent trend in the sentencing policy to listen to the wailings of the victims. Rehabilitation of the prisoner need not be by closing the eyes towards the suffering victims of the offence. A glimpse at the field of victimology reveals two types of victims. The first type consists of direct victims, i.e., those who are alive and suffering on account of the harm inflicted by the prisoner while committing the crime. The second type comprises of indirect victims who are dependants of the direct victims of crimes who undergo sufferings due to deprivation of their breadwinner. xxx xxx xxx "99. In our efforts to look after and protect the human rights of the convict, we cannot forget the victim or his family in case of his death or who is otherwise incapacitated to earn his livelihood because of the criminal act of the convict. The victim is certainly entitled to reparation, restitution and safeguard of his rights. Criminal justice would look hollow if justice is not done to the victim of the crime. The subject of victimology is gaining ground while we are also concerned with the rights of the prisoners and prison reforms. A victim of crime cannot be a ―forgotten man‖ in the criminal justice system. It is he who has suffered the most. His family is ruined particularly in case of death and other bodily injury. This is apart from the factors like loss of reputation, humiliation, etc. An honour which is lost or life which is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace. xxx xxx xxx

101. Reparation is taken to mean the making of amends by an offender to his victim, or to victims of crime generally, and may take the form of compensation, the performance of some service or the

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return of stolen property (restitution), these being types of reparation which might be described as practical or material. The term can also be used to describe more intangible outcomes, as where an offender makes an apology to a victim and provides some reassurance that the offence will not be repeated, thus repairing the psychological harm suffered by the victim as a result of the crime.” (Emphasis Supplied)

135. Justice remains incomplete without adequate compensation to the victim. Justice can be complete only when the victim is also compensated. In order to give complete mental satisfaction to the victim, it is extremely essential to provide some solace to him in the form of compensation so that it can work as a support for the victim to start his life afresh.

Sections 357 and 357A of CrPC – Compensation to victim(s) of crime

136. Section 357 CrPC empowers the Court to award compensation to the victim(s) of the offence in respect of the loss/injury suffered. The object of the section is to meet the ends of justice in a better way. This section was enacted to reassure the victims that they are not forgotten in the criminal justice system. The amount of compensation to be awarded under Section 357 CrPC depends upon the nature of crime, extent of loss/damage suffered and the capacity of the accused to pay for which the Court has to conduct a summary inquiry. However, if the accused does not have the capacity to pay the compensation or the compensation awarded against the accused is not adequate for rehabilitation of the victim, the Court can invoke Section 357A CrPC to recommend the case to the State/District Legal Services Authority for award of compensation from the State funded Victim Compensation Fund under the Delhi Victim Compensation Scheme, 2018. Section 357 CrPC is mandatory and it is the duty of all Courts to consider it in every criminal case. The Court is required to give reasons to show such

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consideration.

137. The law contained in Section 357(3) CrPC, has, by and large, been mostly neglected or ignored. Hence the Supreme Court in Hari Singh v. Sukhbir Singh, (1988) 4 SCC 551, had to issue a mild reprimand while exhorting the Courts for liberal use of this provision to meet the ends of justice as a measure of responding appropriately to the crime, and reconciling the victim with the offender. The relevant portion of the said judgment is reproduced hereunder:

“10. …Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. … It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way.” (Emphasis Supplied)

138. In Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd., (2007) 6 SCC 528, the Supreme Court explained the scope and purpose of grant of compensation as under:

“38. The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefore in mind. It may be compensating the person in one way or

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the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of the accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way, may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub- section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction cannot be exercised at the whims and caprice of a judge.” (Emphasis Supplied)

139. In Manish Jalan v. State of Karnataka, (2008) 8 SCC 225, the Supreme Court observed that the Courts have not made use of the provisions regarding award of compensation to the victims as often as they ought to be. The relevant portion of the said judgment is reproduced hereunder:

“12. Though a comprehensive provision enabling the court to direct payment of compensation has been in existence all through but the experience has shown that the provision has rarely attracted the attention of the courts. Time and again the courts have been reminded that the provision is aimed at serving the social purpose and should be exercised liberally yet the results are not very heartening.”

140. In K.A. Abbas H.S.A. v. Sabu Joseph, (2010) 6 SCC 230, the Supreme Court again noted that Section 357 CrPC is an important provision but the Courts have seldom invoked it, perhaps due to the ignorance of the object of it.

141. In Roy Fernandes v. State of Goa, (2012) 3 SCC 221, the Supreme Court again observed that the Criminal Courts do not appear to have taken significant note of Section 357 CrPC or exercised the power vested in them. The relevant portion of the said judgment is reproduced hereunder:-

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“41. The provision for payment of compensation has been in existence for a considerable period of time on the statute book in this country. Even so, the criminal courts have not, it appears, taken significant note of the said provision or exercised the power vested in them thereunder. ...”

142. In Ankush Shivaji Gaikwad v. State of Maharashtra, (2013) 6 SCC 770, the Supreme Court again noted with despair that Section 357 CrPC has been consistently neglected/ignored by the Courts despite series of pronouncements to that effect. The Supreme Court cited with approval Sarwan Singh v. State of Punjab, (1978) 4 SCC 111; Maru Ram (supra), Hari Singh, (supra), Balraj v. State of U.P., (1994) 4 SCC 29, Baldev Singh v. State of Punjab, (1995) 6 SCC 593 and Dilip S. Dahanukar (supra). The Supreme Court held that Section 357 CrPC is mandatory and has to be applied in every criminal case and the Courts are required to record reasons for such application. The relevant portions of the judgment are reproduced hereunder:-

“28. The only other aspect that needs to be examined is whether any compensation be awarded against the appellant and in favour of the bereaved family under Section 357 of the Code of Criminal Procedure, 1973. This aspect arises very often and has been a subject- matter of several pronouncements of this Court. The same may require some elaboration to place in bold relief certain aspects that need to be addressed by the courts but have despite the decisions of this Court remained obscure and neglected by the courts at different levels in this country. xxx xxx xxx

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

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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? xxx xxx xxx 54. Applying the tests which emerge from the above cases to Section 357, it appears to us that the provision confers a power coupled with a duty on the courts to apply its mind to the question of awarding compensation in every criminal case. We say so because in the background and context in which it was introduced, the power to award compensation was intended to reassure the victim that he or she is not forgotten in the criminal justice system. The victim would remain forgotten in the criminal justice system if despite the legislature having gone so far as to enact specific provisions relating to victim compensation, courts choose to ignore the provisions altogether and do not even apply their mind to the question of compensation. It follows that unless Section 357 is read to confer an obligation on the courts to apply their mind to the question of compensation, it would defeat the very object behind the introduction of the provision. xxx xxx xxx 61. Section 357 CrPC confers a duty on the court to apply its mind to the question of compensation in every criminal case. It necessarily follows that the court must disclose that it has applied its mind to this question in every criminal case. xxx xxx xxx

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 CrPC would involve a certain enquiry albeit summary unless of course the facts as

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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.” (Emphasis Supplied)

143. In para 68 of the said judgment, the Supreme Court directed the copy of this judgment be forwarded to the Registrars of all the High Courts for circulation among Judges handling criminal trials and hearing appeals.

144. In Ashwani Gupta v. Government of India, 2005 (117) DLT 112, this Court held that mere punishment of the offender cannot give much solace to the family of the victim. Since the civil action for damages is a long drawn/cumbersome judicial process, the compensation of Section 357 CrPC would be useful and effective remedy.

145. There is, therefore not only statutory empowerment under Section 357(3) CrPC of the appellate court to make an appropriate order regarding compensation but the mandatory duty of every court, at the trial stage as well as the appellate court to consider and pass an order of fair and reasonable compensation on relevant factors.

146. In Vikas Yadav v State of U.P, 2015 SCC OnLine Del 7129 the Division Bench of this Court in which one of us (J.R. Midha, J.) was a

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member, laid down the principles relating to the procedure to be followed in respect of Section 357 CrPC.

Principles in regard to methodology of assessing compensation

147. Section 357(1)(b) CrPC empowers the Court to award compensation out of the fine to the victim for any loss or injury caused by the offence when the compensation is, in the opinion of the Court, recoverable by such person in Civil Court. Section 357(1)(c) empowers the Court to award compensation out of the fine in death cases where the persons are entitled to recover the same under Fatal Accidents Act, 1855. Section 357(3) empowers the Court to award compensation to any person who has suffered loss or injury by reason of the act of the accused. Section 357(5) provides that at the time of awarding compensation in any subsequent civil suit relating to the same matter, the Court shall take into account any sum paid or recovered as compensation under this section. The effect of these provisions is that the Court has to compute the compensation which the victims are entitled to claim against the accused under civil law.

148. In cases resulting in death, the multiplier method has been accepted as a sound method for determining the compensation to the family of the deceased in law of torts. Reference may be made to Gobald Motor Service Ltd. v. R.M.K. Veluswami, 1962 (1) SCR 929; Ishwar Devi Malik. v. Union of India, ILR (1968) 1 Delhi 59; Lachman Singh v. Gurmit Kaur, I (1984) ACC 489 (SB); Lachhman Singh v. Gurmit Kaur, AIR 1979 P&H 50; Bir Singh v. Hashi Rashi Banerjee, AIR 1956 Cal. 555. Reference may also be made to Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197; Municipal Corporation of Delhi v. Association of Victims of Uphaar Tragedy, AIR 2012 SC 100; Jaipur Golden Gas Victims Association v. Union of India,

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(2009) 164 DLT 346; Nagrik Sangarsh Samiti v. Union of India, 2012 ACJ 1548 ; Ram Kishore v. M.C.D, (2007) 97 DRJ 445; and Ashok Sharma v. Union of India, 2009 ACJ 1063. The multiplier method is statutorily recognized for computation of compensation in death cases under Section 163A of the Motor Vehicles Act, 1988.

149. The multiplier method is based on the pecuniary loss caused to the dependants by the death of the victim of the road accident. The dependency of the dependants is determined by taking the annual earning of the deceased at the time of the accident. Thereafter, effect is given to the future prospects of the deceased. After the income of the deceased is established, the deduction is made towards the personal expenses of the deceased which he would have spent on himself. If the deceased was unmarried, normally 50% of the income is deducted towards his personal expenses. If the deceased was married and leaves behind two to three dependents, 1/3rd deduction is made; if the deceased has left behind four to six family members, deduction of 1/4th of his income is made and where the number of dependent family members exceeds six, the deduction of 1/5th of the income is made. The remaining amount of income after deduction of personal expenses is taken to be the loss of dependency to the family members which is multiplied by 12 to determine the annual loss of dependency. The annual loss of dependency is multiplied by the multiplier according to the age of the deceased or victim(s) whichever is higher. A table of multipliers is given in Schedule-II of the Motor Vehicle Act, 1988 but there was some error in the said table which has been corrected by the Supreme Court in Sarla Verma v. DTC, 2009 ACJ 1298. For example, in a case where the deceased was aged 36 years working as a telephone operator earning Rs.7,500/- per month dies in a

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road accident leaving behind his widow and two children; first step would be to add 50% of the income as future prospects and total income for computation of compensation would be taken as Rs.11,250/-. Next step is to deduct 1/3rd towards the personal expenses which the deceased would have spent on himself and the loss of dependency of his family would be Rs.7,500/- per month. The annual loss of dependency of Rs.90,000/- is multiplied by the multiplier of 15 to compute the total loss of dependency as Rs.13,50,000/-. Compensation has to be added towards loss of love and affection, loss of consortium, loss to estate, medical expenses, emotional harm/trauma, mental and physical shock etc. and funeral expenses.

Interim compensation

150. In Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490, the Supreme Court held that the Court has the right to award interim compensation and the jurisdiction to pay interim compensation shall be treated to be part of the overall jurisdiction of the Courts trying the offence. The relevant portion of the judgment is reproduced hereunder:

“18. This decision recognises the right of the victim to compensation by providing that it shall be awarded by the court on conviction of the offender subject to the finalisation of the Scheme by the Central Government. If the court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the court the right to award interim compensation which should also be provided in the Scheme. On the basis of principles set out in the aforesaid decision in Delhi Domestic Working Women's Forum [(1995) 1 SCC 14 : 1995 SCC (Cri) 7], the jurisdiction to pay interim compensation shall be treated to be part of the overall jurisdiction of the courts trying the offences of rape which, as pointed out above is an offence against basic human rights as also the Fundamental Right of Personal Liberty and Life.

19. Apart from the above, this Court has the inherent jurisdiction to

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pass any order it considers fit and proper in the interest of justice or to do complete justice between the parties.” (Emphasis Supplied) Conclusion

151. Article 227 of the Constitution empowers the High Court with the superintendence over all Courts and Tribunals throughout its territory. The power of superintendence under Article 227 includes the administrative as well as judicial superintendence i.e. the High Court can transfer a case by exercising its administrative power of superintendence or its judicial power of superintendence. Article 235 of the Constitution empowers the High Court with respect to the posting and promotion of Judicial Officers.

152. Code of Criminal Procedure vests in the High Court plenary powers relating to the superintendence over the subordinate Courts including the appointment, posting, promotion and transfer of the judicial officers. Section 194 empowers the High Court to direct a Sessions Judge to try particular cases. Section 407 empowers the High Court to transfer the cases on judicial side and Section 483 empowers the High Court to transfer the cases on the administrative side. Section 482 vests inherent power in the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. Section 483 empowers the High Court to exercise superintendence over the subordinate judiciary. Rule 3 of Part B of Chapter 26 of Delhi High Court Rules empowers the High Court to transfer the cases on administrative grounds. To summarize, the High Court has both judicial as well as administrative power to regulate administration of justice.

153. Note 2 appended to the transfer order dated 13th March, 2020 issued by the High Court in exercising the aforesaid powers under the Constitution

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and the Code of Criminal Procedure is declared to be legal and valid. The contrary finding of the Division Bench relating to Note 2 in Jitender‟s case (supra) is overruled.

154. The ld. Addl. Sessions Judge was duly empowered to pronounce the judgment by virtue of Note 2 appended to the transfer order dated 13th March, 2020. The pronouncement of the judgment by ld. Addl. Sessions Judge is in terms of Section 353 CrPC. The delay in pronouncing the judgment is a mere irregularity and is hereby condoned.

155. Notwithstanding validity of Note 2, the impugned judgment is also protected by Sections 462 and 465 CrPC and the de facto doctrine.

Victimology

157. The criminal justice system is meant for doing justice to all - the accused, the society and the victim.

158. Justice remains incomplete without adequate compensation to the victim. Justice can be complete only when the victim is also compensated.

Sections 357 & 357A of CrPC

159. Section 357 CrPC empowers the Court to award compensation to victims who have suffered by the action of the accused.

161. Section 357 CrPC is intended to reassure the victim that he/she is not forgotten in the criminal justice system.

162. Section 357 CrPC is a constructive approach to crimes. It is indeed a step forward in our criminal justice system.

163. The power under Section 357 CrPC is not ancillary to other sentences but in addition thereto.

164. The power under Section 357 CrPC is to be exercised liberally to meet the ends of justice in a better way.

165. Section 357 CrPC confers a duty on the Court to apply its mind on the question of compensation in every criminal case.

166. The word „may‟ in Section 357(3) CrPC means „shall‟ and therefore, Section 357 CrPC is mandatory.

Quantum of compensation

168. The amount of compensation is to be determined by the Court

Financial capacity of the accused

Victim Impact Report

Summary Inquiry

171. A summary inquiry is necessary to ascertain the impact of crime on the victim, the expenses incurred on prosecution as well as the paying capacity of the accused.

173. After the conviction of the accused, the Trial Court shall direct the accused to file the affidavit of his assets and income in the format of Annexure-A within 10 days.

174. After the conviction of the accused, the Court shall also direct the State to disclose the expenses incurred on prosecution on affidavit along with the supporting documents within 30 days.

180. All the Courts below shall send a monthly statement to the Registrar General of this Court containing the list of cases decided each month. The list shall contain the name and particulars of the case; date of conviction; whether affidavit of assets and income has been filed by the accused; whether summary inquiry has been conducted to assess the compensation and determine the paying capacity of the accused; and compensation amount awarded. The monthly statement shall also contain one page summary format of the above information. The first monthly report for the period 01st January, 2021 to 31st January, 2021 be submitted by 15th February, 2021 and thereafter, by 15th of each English calendar month. The Registrar General of this Court shall place these reports before ACR Committee of the Judicial Officers.

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181. Sh. Kanwal Jeet Arora, Member Secretary, Delhi State Legal Services Authority submits that additional manpower would be required to conduct the summary inquiry in every criminal case before sentencing.

182. Delhi State Legal Services Authority is directed to prepare a proposal for additional manpower after examining number of summary inquiries that are likely to be conducted by DSLSA every month and the proposal be sent to Government of NCT of Delhi within one week whereupon Government of NCT of Delhi shall complete all necessary formalities within three weeks to ensure that the directions of this Court relating to the summary inquiry by DSLSA in every criminal case are implemented w.e.f. 01st January, 2021.

183. Mr. Rahul Mehra, ld. Standing Counsel shall take up the matter with Government of NCT of Delhi to ensure the compliance of this direction within the stipulated time.

184. List for reporting compliance and further directions on 25th February, 2021.

185. This Court appreciates the valuable and effective assistance rendered by Mr. Kanhaiya Singhal, Advocate assisted by Ms. Pratiksha Tripathi, Advocate; Mr. Rahul Mehra, ld. Standing Counsel assisted by Ms. Aashaa Tiwari, ld. APP and Mr. Chaitanya Gosain, Advocate; Mr. Rajshekhar Rao, Advocate assisted by Ms. Aanchal Tikmani and Mr. Shreeyash Lalit, Advocates for Delhi High Court; Mr. Vikas Pahwa, ld. Amicus Curiae assisted by Mr. Sumer Singh Boparai, Mr. Varun Bhati and Ms. Raavi Sharma, Advocates; Prof. G.S. Bajpai, Professor of Criminology & Criminal Justice, National Law University, Delhi as amicus curiae assisted by Mr. Neeraj Tiwari, Assistant Professor of Law, Mr. Ankit Kaushik, Research Associate, Mr. G. Arudhra Rao and Ms. Shelal Lodhi Rajput; Mr. Kanwal

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Jeet Arora, Member Secretary, DSLSA; Mr. Akshay Chowdhary and Ms. Anjali Agrawal, Law Researchers attached to this Court.

186. This Court is of the view that the mandatory summary inquiry by DSLSA into the loss/damage suffered by the victim and the paying capacity of the accused after conviction; and the affidavit of accused in format of Annexure-A; and Victim Impact Report by DSLSA in the format of Annexure-B and Annexure B-1 should be incorporated in the Statue/Rules. Let this suggestion be considered by the Central Government. Copy of this judgment along with Annexure-A, Annexure-B and Annexure B-1 be sent to Mr. Chetan Sharma, ld. ASG for taking up the matter with Ministry of Law & Justice. Mr. Chetan Sharma, ld. ASG is requested to assist this Court on 25th February, 2021.

187. Copy of this judgment along with Annexure-A, Annexure-B and Annexure B-1 be sent to the Registrar General of this Court who shall send the same to the District Judge (HQs.) for being circulated to all concerned Courts.

188. Copy of this judgment along with affidavit of accused in the format of Annexure-A and Victim Impact Report in the format of Annexure-B and Annexure B-1 be uploaded in the District Court Website (in .pdf format) to enable the lawyers/litigants to download the same.

189. Copy of this judgment along with Annexure-A, Annexure-B and Annexure B-1 be sent to Delhi Judicial Academy to sensitize the Judges about the directions given by this Court.

190. National Judicial Academy is reporting the best practices of the High Courts on their website (www.nja.nic.in) under the head of Practices & Initiatives of various High Courts. Copy of this judgment along with

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Annexure-A, Annexure-B and Annexure B-1 be sent to National Judicial Academy.

191. Copy of this judgment be also sent to Delhi State Legal Services Authority. Copy of this judgment be also sent to the Director of Prosecution for circulation to all Prosecutors.

J.R. MIDHA, J. RAJNISH BHATNAGAR, J. BRIJESH SETHI, J. NOVEMBER 27, 2020

ANNEXURE-A Format of the AFFIDAVIT of the Convict (To be filed by the Convict within ten days of the conviction) AFFIDAVIT I _______________________, son of/daughter of/wife of ___________________, aged about ____ years, resident of ___________________________, do hereby solemnly declare and affirm as under:

S. No.

Description

Particulars

FIR No., date and under Section(s)

Name of Police Station

Date, time and place of offence

Date of conviction

Name of the convict

Father‟s /Spouse‟s name

Age

Gender

Marital status

10.

Addresses: Permanent

Present

11.

Contact information: Mobile

Email ID

12.

Educational and professional qualifications

13.

Occupation

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14.

Monthly income from all sources including employment, business, vocation, interest, investment, income from properties, assets etc.

15.

Whether you are assessed to Income Tax? If yes, file the copy of Income Tax Returns for the last three years.

16.

Complete details of the immediate family members (Name, age, relation, occupation, income and their address)

17.

If the deponent is a salaried person: (i) Designation (ii) Name and address of the employer (iii) Monthly Income including the salary, D.A., commissions/ incentives, bonus, perks etc.

18.

If the deponent is self-employed: (i) Nature of business/profession (ii) Whether the business/profession is carried on as an individual, sole-proprietorship concern, partnership concern, company, HUF, joint family business or in any other form. (iii) Net monthly income

19.

Income from other sources: Agricultural Income; Rent; Interest on bank deposits, FDRs, investments including deposits, NSC, IVP, KVP, Post Office schemes, PPF, loans; Dividends; Mutual Funds; Annuities etc.

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20.

Income earned by the convict during incarceration

21.

Any other income not covered above

22.

Total Income

Monthly

Annual

23.

Immovable properties Particulars of the immovable properties including joint properties, built up properties, lease hold properties, land/ agricultural land and investment in real estate such as booking of plots, flats etc. in your name or in joint names

24.

Financial Assets Particulars of all bank accounts including Current and Savings, Demat accounts in your name or joint names held in the last three years

Account Number

Name of Bank

Current Balance

25.

Investments FDRs, NSC, IVP, KVP, Post Office schemes, PPF etc.; Deposits with Government and Non-Government entities; Stocks, shares, debentures, bonds, units and mutual funds, etc.

Particulars

Current Value

26.

Movable Assets Motor Vehicles, live stock, plant and equipment etc.

Particulars

Cost of acquisition

27.

List of other assets not itemized above

28.

Value of total assets

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DOCUMENTS TO BE FILED WITH THE AFFIDAVIT

S. No.

Particulars

Please Tick

Attached

To follow

29.

Aadhaar Card

30.

Voter ID Card

31.

PAN Card

32.

Statement of Account of all bank accounts including current, savings, DEMAT for the last three years

33.

Income Tax Return(s) of the deponent along with the balance sheets, statement of income and Annexures for last three years

34.

Salary Slip in case of salaried persons

Declaration:

1. I solemnly declare and affirm that I have made true, accurate and complete disclosure of my income from all sources and assets. I further declare and affirm that I have no income and assets other than set out in this affidavit.

2. I undertake to inform this Court immediately upon any material change in my income and assets or any other information disclosed in this affidavit.

3. I hereby declare that the contents of this affidavit have been duly explained to me and have been understood by me.

4. The copies of the documents filed with the affidavit are the true copies of the originals and I have self attested the copies after comparing them with their originals.

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5. I understand that any false statement made in this affidavit may constitute an offence under Section 199 read with Sections 191 and 193 of the Indian Penal Code, 1860 punishable with imprisonment up to seven years and fine, and Section 209 of Indian Penal Code, 1860 punishable with imprisonment up to two years and fine. I have read and understood Sections 191, 193, 199 and 209 of the Indian Penal Code, 1860.

DEPONENT Verification: Verified at ____________on this ____ day of ___________ that the contents of the above affidavit relating to my income and assets are true to my knowledge, no part of it is false and nothing material has been concealed therefrom. I further verify that the copies of the documents filed along with the affidavit are true copies of the originals. DEPONENT

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ANNEXURE-B Format of VICTIM IMPACT REPORT (To be filed by DSLSA in all criminal cases, other than motor accident cases, within 30 days of conviction and to be considered by the Court at the time of sentencing)

S. No.

Description

Particulars

FIR No., date and under Section(s)

Name of Police Station

Date, time and place of offence

Nature of injury/loss suffered by the victim(s)

(i) Physical harm

(a) Simple injuries

(b) Grievous injuries

(ii) Emotional harm

(iii) Damage/loss of the property

(iv) Any other loss/injury

Brief description of offence(s) in which the accused has been convicted

Name of the victim

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Father‟s /Spouse‟s name

Age

Gender

10.

Marital status

11.

Addresses: Permanent

Present

12.

Contact information: Mobile

Email ID

I. Death Case

S. No.

Description

Particulars

13.

Name of the deceased

14.

Father‟s/Spouse‟s name

15.

Age of the deceased

16.

Gender of the deceased

17.

Marital status of the deceased

18.

Occupation of the deceased

19.

Income of the deceased

20.

Name, age and relationship of legal representatives of deceased:

Name

Age

Gender

Relation

(i)

(ii)

(iii)

(iv)

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(v)

(vi)

21.

Details of losses suffered

Pecuniary Losses:

(i)

Income of the deceased (A)

(ii)

Add-Future Prospects (B)

(iii)

Less-Personal expenses of the deceased (C)

(iv)

Monthly loss of dependency [(A+B) – C = D]

(v)

Annual loss of dependency (D x 12)

(vi)

Multiplier (E)

(vii)

Total loss of dependency (D x 12 x E = F)

(viii)

Medical Expenses

(ix)

Funeral Expenses

(x)

Any other pecuniary loss/damage

Non-Pecuniary Losses:

(xi)

Loss of consortium

(xii)

Loss of love and affection

(xiii)

Loss of estate

(xiv)

Emotional harm/trauma, mental and physical shock etc.

(xv)

Post-traumatic stress disorder (anxiety, depression, hostility, insomnia, self-destructive behaviour, nightmares, agitation, social isolation, etc.) panic disorder or phobia(a) which got triggered by the incident/death of the deceased

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victim.

(xvi)

Any other non pecuniary loss/damage

Total loss suffered

II. Injury Case

S. No.

Description

Particulars

22.

Name of the injured

23.

Father‟s /Spouse‟s name

24.

Age of the injured

25.

Gender of the injured

26.

Marital status of the injured

27.

Occupation of the injured

28.

Income of the injured

29.

Nature and description of injury

30.

Medical treatment taken by the injured

31.

Name of hospital and period of hospitalization

32.

Details of surgeries, if undergone

33.

Whether any permanent disability? If yes, give details

34.

Whether the injured got reimbursement of medical expenses

35.

Details of family/dependents of the injured:

Name

Age

Gender

Relation

(i)

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(ii)

(iii)

(iv)

(v)

(vi)

36.

Details of losses suffered

Pecuniary Losses:

(i)

Expenditure incurred on treatment, conveyance, special diet, attendant etc.

(ii)

If treatment is still continuing, give the estimate of expenditure likely to be incurred on future treatment

(iii)

Loss of income

(iv)

Any other loss which may require any special treatment or aid to the injured for the rest of his life

(v)

Percentage of disability assessed and nature of disability as permanent or temporary

(vi)

Percentage of loss of earning capacity in relation to disability

(vii)

Loss of future Income - (Income x % Earning Capacity x Multiplier)

(viii)

Any other pecuniary loss or damage

Non-Pecuniary Losses:

(i)

Pain and suffering

(ii)

Loss of amenities of life, inconvenience, hardships, disappointment, frustration, mental

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stress, dejectment and unhappiness in future life etc.

(iii)

(iv)

Emotional harm/trauma, mental and physical shock etc.

(v)

Disfiguration

(vi)

Loss of marriage prospects

(vii)

Loss of Reputation

(viii)

Any other non-pecuniary loss/damage

Total loss suffered

III. Damage/Loss to the property

S. No.

Description

Particulars

37.

Description of the property damaged/lost

38.

The value of loss suffered

CRL.A. 352/2020 & CRL.A. 353/2020 Page 120 of 133

IV. Paying capacity of the accused The accused has submitted the affidavit of his assets and income in the format Annexure-A. The particulars given by the accused in his affidavit have been verified through SDM/Police/Prosecution and after considering the same, paying capacity of the accused is assessed as under: ................................................................................................................... ................................................................................................................... ................................................................................................................... ................................................................................................................... V. Recommendations of Delhi State Legal Services Authority After taking into consideration the gravity of the offense, severity of mental/physical harm/injuries suffered by the victim(s); losses suffered by the victim(s) and the paying capacity of the accused. The recommendations of the Committee are as under:- ................................................................................................................... ................................................................................................................... ................................................................................................................... ................................................................................................................... Delhi Member Secretary Dated: Delhi State Legal Services Authority

CRL.A. 352/2020 & CRL.A. 353/2020 Page 121 of 133

Documents considered and attached to the report In death cases:

1. Death certificate

2. Proof of age of the deceased which may be in form of a) Birth Certificate; b) School Certificate; c) Certificate from Gram Panchayat (in case of illiterate); d) Aadhar Card

3. Proof of Occupation and Income of the deceased which may be in form of a) Pay slip/salary certificate (salaried employee); b) Bank statements of the last six months; c) Income tax Return; Balance Sheet

4. Proof of the legal representatives of the deceased (Names, Age, Address, Phone Number & Relationship)

5. Treatment record, medical bills and other expenditure

6. Bank Account no. of the legal representatives of the deceased with name and address of the bank

7. Any other document found relevant

In injury cases:

8. Multi angle photographs of the injured

9. Proof of age of the deceased which may be in form of a) Birth Certificate; b) School Certificate; c) Certificate from Gram Panchayat (in case of illiterate); d) Aadhar Card

10. Proof of Occupation and Income of the deceased which may be in form of a) Pay slip/salary certificate (salaried employee); b) Bank statements of the last six months; c) Income tax Return; Balance Sheet

11. Treatment record, medical bills and other expenditure.

12. Disability certificate (if available)

13. Proof of absence from work where loss of income on account of injury is being claimed, which may be in the form of a) Certificate from the employer; b) Extracts from the attendance register.

14. Proof of reimbursement of medical expenses by employer or under a Mediclaim policy, if taken

15. Any other document found relevant

CRL.A. 352/2020 & CRL.A. 353/2020 Page 122 of 133

ANNEXURE-B1 Format of VICTIM IMPACT REPORT (To be filed by DSLSA in all criminal cases relating to motor accidents within 30 days of conviction and to be considered by the Court at the time of sentencing)

S. No.

Description

Particulars

FIR No., date and under Section(s)

Name of Police Station

Date, time and place of offence

Nature of injury/loss suffered by the victim(s)

(i) Physical harm

(a) Simple injuries

(b) Grievous injuries

(ii) Emotional harm

(iii) Damage/loss of the property

(iv) Any other loss/injury

Brief description of offence(s) in which the accused has been convicted

Name of the victim

CRL.A. 352/2020 & CRL.A. 353/2020 Page 123 of 133

Father‟s /Spouse‟s name

Age

Gender

10.

Marital status

11.

Addresses: Permanent

Present

12.

Contact information: Mobile

Email ID

I. Death Case

S. No.

Description

Particulars

13.

Name of the deceased

14.

Father‟s/Spouse‟s name

15.

Age of the deceased

16.

Gender of the deceased

17.

Marital status of the deceased

18.

Occupation of the deceased

19.

Income of the deceased

20.

Name, age and relationship of legal representatives of deceased:

Name

Age

Gender

Relation

(i)

(ii)

(iii)

(iv)

(v)

CRL.A. 352/2020 & CRL.A. 353/2020 Page 124 of 133

(vi)

21.

Details of losses suffered

Pecuniary Losses:

(i)

Income of the deceased (A)

(ii)

Add-Future Prospects (B)

(iii)

Less-Personal expenses of the deceased (C)

(iv)

Monthly loss of dependency [(A+B) – C = D]

(v)

Annual loss of dependency (D x 12)

(vi)

Multiplier (E)

(vii)

Total loss of dependency (D x 12 x E = F)

(viii)

Medical Expenses

(ix)

Funeral Expenses

(x)

Any other pecuniary loss/damage

Non-Pecuniary Losses:

(xi)

Loss of consortium

(xii)

Loss of love and affection

(xiii)

Loss of estate

(xiv)

Emotional harm/trauma, mental and physical shock etc.

(xv)

CRL.A. 352/2020 & CRL.A. 353/2020 Page 125 of 133

(xvi)

Any other non-pecuniary loss/damage

Total loss suffered

II. Injury Case

S. No.

Description

Particulars

22.

Name of the injured

23.

Father‟s /Spouse‟s name

24.

Age of the injured

25.

Gender of the injured

26.

Marital status of the injured

27.

Occupation of the injured

28.

Income of the injured

29.

Nature and description of injury

30.

Medical treatment taken by the injured

31.

Name of hospital and period of hospitalization

32.

Details of surgeries, if undergone

33.

Whether any permanent disability? If yes, give details

34.

Whether the injured got reimbursement of medical expenses

35.

Details of family/dependents of the injured:

Name

Age

Gender

Relation

(i)

(ii)

CRL.A. 352/2020 & CRL.A. 353/2020 Page 126 of 133

(iii)

(iv)

(v)

(vi)

36.

Details of losses suffered

Pecuniary Losses:

(i)

Expenditure incurred on treatment, conveyance, special diet, attendant etc.

(ii)

If treatment is still continuing, give the estimate of expenditure likely to be incurred on future treatment

(iii)

Loss of income

(iv)

Any other loss which may require any special treatment or aid to the injured for the rest of his life

(v)

Percentage of disability assessed and nature of disability as permanent or temporary

(vi)

Percentage of loss of earning capacity in relation to disability

(vii)

Loss of future Income - (Income x % Earning Capacity x Multiplier)

(viii)

Any other pecuniary loss/damage

Non-Pecuniary Losses:

(i)

Pain and suffering

(ii)

Loss of amenities of life, inconvenience, hardships, disappointment, frustration, mental stress, dejectment and unhappiness

CRL.A. 352/2020 & CRL.A. 353/2020 Page 127 of 133

in future life etc.

(iii)

(iv)

Emotional harm/trauma, mental and physical shock etc.

(v)

Disfiguration

(vi)

Loss of marriage prospects

(vii)

Loss of Reputation

(viii)

Any other non-pecuniary loss/damage

Total loss suffered

III. Damage/Loss to the property

S. No.

Description

Particulars

37.

Description of the property damaged/lost

38.

The value of loss suffered

IV. Conduct of the accused

S. No.

Description

Particulars

39.

Whether the accused fled from the Spot If so, when he/ she appeared before Police/ Court or arrested?

40.

Whether the Accused reported the accident to the Police/ family of the victim

CRL.A. 352/2020 & CRL.A. 353/2020 Page 128 of 133

41.

(i) Whether the Accused provided any assistance to the victim?

(ii) Whether the Accused took the victim to the hospital?

(iii) Whether the Accused visited the victim at the hospital?

42.

Whether the Accused remained at the spot till police arrived

43.

Whether the Accused cooperated in the investigation

44.

Whether the Accused removed his/ her vehicle from the spot before police arrived

45.

Whether the Accused paid compensation/ medical expenses to victim/ his family

46.

Whether the Accused has previous convictions

47.

Whether the Accused is/ was a close relative or friend of the victim

48.

Age of the Accused

49.

Gender of the Accused

50.

Whether accused suffered injuries during the accident

51.

Whether the Accused discharged the duties under Sections 132 and 134 of the MV Act, 1988? If no, whether the Accused has been prosecuted under Section 187 of MV Act

52.

Whether the Driver has been previously involved in a motor accident case If Yes, provide following details: FIR Number and Police Station

53.

In case the driver fled from the spot, did the owner comply with the provisions of Section 133 of MV Act

54.

Any other information regarding the conduct of the Accused

CRL.A. 352/2020 & CRL.A. 353/2020 Page 129 of 133

55.

Apparent contributing circumstances

(i)

Driving without valid driving license

(ii)

Driving while disqualified

(iii)

Learner driving without supervision

(iv)

Vehicle not insured

(v)

Driving a stolen vehicle

(vi)

Vehicle taken out without the consent of the owner

(vii)

Driving dangerously or at excessive speed

(viii)

Dangerously loaded vehicle/ Overloaded

(ix)

Parking on the wrong side of the road

(x)

Improper parking/ Parking on wrong side of road

(xi)

Non-observance of traffic rules

(xii)

Poorly maintained vehicle

(xiii)

Fake/forged driving license

(xiv)

History of convulsions/ seizures

(xv)

Fatigued/ Sleepy

(xvi)

Guilty of violation of traffic rules in the past

(xvii)

Previous convictions

(xviii)

Suffering from medical condition that impairs driving

(xix)

Using mobile phone while driving (Handheld)

(xx)

Using mobile phone while driving (Handsfree)

(xxi)

More than one injured/ dead

(xxii)

Under the influence of alcohol or drugs

CRL.A. 352/2020 & CRL.A. 353/2020 Page 130 of 133

56.

Aggressive Driving

(i)

Jumping Red Light

(ii)

Abrupt braking

(iii)

Neglect to keep to the left of road

(iv)

Criss Cross Driving

(v)

Driving on the wrong side

(vi)

Driving close to vehicle in front

(vii)

Inappropriate attempts to overtake

(viii)

Cutting in after overtaking

(ix)

Exceeding Speed Limit

(x)

Racing/ Competitive Driving

(xi)

Disregarding any warnings

(xii)

Overtaking where prohibited

(xiii)

Driving with loud music

(xiv)

Improper reversing

(xv)

Improper passing

(xvi)

Improper turning

(xvii)

Turning without indication

(xviii)

Driving in no-entry zone

(xix)

Not slowing at junctions/ crossings

(xx)

Turning with indication

(xxi)

Not respecting stop sign

(xxii)

Not respecting right of way to pedestrians

57.

Irresponsible Behaviour

(i)

Failing to stop after accident

(ii)

Ran away from the spot after leaving the vehicle

(iii)

Destruction or attempt to destroy the evidence

(iv)

Falsely claiming that one of the victims was responsible for the accident

(v)

Trying to throw the victim off the bonnet of the vehicle by swerving in order to escape

(vi)

Causing death/injury in the course of dangerous driving post commission of crime or chased by police in an attempt to avoid detection or apprehension

(vii)

Offence committed while the offender was on bail

(viii)

Took any false defence

(ix)

Misled the investigation

(x)

Post-accident road rage behavior

CRL.A. 352/2020 & CRL.A. 353/2020 Page 132 of 133

Dated: Delhi State Legal Services Authority

CRL.A. 352/2020 & CRL.A. 353/2020 Page 133 of 133

Documents considered and attached to the report In death cases:

1. Death certificate

2. Proof of age of the deceased which may be in form of a) Birth Certificate; b) School Certificate; c) Certificate from Gram Panchayat (in case of illiterate); d) Aadhar Card

4. Proof of the legal representatives of the deceased (Names, Age, Address, Phone Number & Relationship)

5. Treatment record, medical bills and other expenditure

6. Bank Account no. of the legal representatives of the deceased with name and address of the bank

7. Any other document found relevant

In injury cases:

8. Multi angle photographs of the injured

9. Proof of age of the deceased which may be in form of a) Birth Certificate; b) School Certificate; c) Certificate from Gram Panchayat (in case of illiterate); d) Aadhar Card

11. Treatment record, medical bills and other expenditure.

12. Disability certificate (if available)

13. Proof of absence from work where loss of income on account of injury is being claimed, which may be in the form of a) Certificate from the employer; b) Extracts from the attendance register.

14. Proof of reimbursement of medical expenses by employer or under a Mediclaim policy, if taken

15. Any other document found relevant

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Sunday 6 December 2020

Delhi High Court directs filing of income affidavit of convict, Victim Impact Report for grant of compensation to victim

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