In view of the above deliberations, the following
conclusions are arrived at:
(i) The provisions in Section 357A(1)(4)&(5) Cr.P.C are
substantive in character.
(ii) The victims under Section 357A(4) of the Cr.P.C. are
entitled to claim compensation for incidents that occurred even
prior to the coming into force of the said provision.
(iii) By giving the benefit to victims under Section 357A(4)
Cr.P.C., for crimes that occurred prior to 31.12.2009, the statutory provision is not given retrospective effect, and instead a
prospective benefit is given based on an antecedent fact.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
WP(C).No.7250 OF 2014(E)
DISTRICT COLLECTOR,ALAPPUZHA.
Vs DISTRICT LEGAL SERVICE AUTHORITY,ALAPPUZHA,
Coram: MR. JUSTICE BECHU KURIAN THOMAS
Dated this the 22nd day of December, 2020
A question of seminal importance has arisen in this case.
The query raised relates to the victim compensation scheme
under Section 357A(4) of Cr.P.C. and its applicability. Is the
provision retrospective or prospective in its application? To
paraphrase the query: Would the victim, of a crime that occurred
prior to 31.12.2009, be entitled to claim compensation under
Section 357A(4) of the Cr. P.C.
2. The facts, though not relevant to be narrated in detail, is
in a nutshell as follows:
Respondents 2 to 4 are the legal heirs of one late
Sri.Sivadas. In a motor vehicle accident that took place on
26-03-2008, Sri. Sivadas succumbed to his injuries. Though a
crime was registered by the Alappuzha Traffic Police, the accused
could not be identified or traced and the trial has not taken
place. In 2013, the legal heirs of late Sivadas applied to the
District Legal Services Authority, Alappuzha, seeking
compensation from the State under Section 357A(4) of the Code
of Criminal Procedure, 1973 (for brevity 'the Cr.P.C').
3. Pursuant to the application, an enquiry, as contemplated
under Section 357A(5) Cr.P.C, was conducted through the
Additional District Judge, Alappuzha, who was appointed as the
Enquiry Officer. The enquiry report was submitted on
12-09-2013. The report revealed that the applicants are the legal
heirs of late Sivadas and that at the time of death he was aged
52 years and a casual labourer. It further stated that considering
the circumstances, an amount of Rs.3,03,000/- (Rupees Three
lakhs three thousand only) was sufficient compensation that
could be awarded to the dependents of late Sri.Sivadas. On the
above basis, the 1st respondent by Ext.P1 order, directed the
State of Kerala to pay an amount of Rs.3,03,000/- to the
dependents of late Sivadas under Section 357A(5) of the Cr.P.C.
Ext.P1 is under challenge.
4. On account of non-representation for the respondents,
this Court had appointed Adv. Leah Rachel Ninan to assist the
respondents and taking note of the important question involved
and its far-reaching effect, this Court also appointed Adv.
Keerthivas Giri as an Amicus Curiae. However, before completion
of the hearing in the case, counsel for the respondents entered
appearance.
5. Arguments were addressed by Adv.B.Vinod, the learned
Senior Government Pleader on behalf of the petitioner, Adv. Leah
Rachel Ninan, as appointed by the Court, as well as Adv.
K.S.Aneesh on behalf of respondents 2 to 4, and Adv. Keerthivas
Giri, the learned Amicus Curiae.
6. Adv. B Vinod, the learned Senior Government Pleader,
passionately argued that the direction to the State to pay
compensation to the dependents of a victim under Section
357A(4)&(5) of the Cr.P.C., for a crime that occurred on
26-03-2008, relying upon an amended provision, brought into
effect only on 31.12.2009, and based on an application of the
year 2013, is wholly unfair and contrary to the statutory
prescription. He also contended that Section 357A(4) Cr.P.C
cannot be given a retrospective operation as the financial
implication of such an interpretation would be so enormous upon
the Government, that it will crumble the economic planning of
the State.
7. Adv. B Vinod argued with persuasive skill and pointed
out that Section 357A Cr.P.C. is a substantive law and unless the
statute by express or necessary intendment stipulates that it will
have retrospective operation, it can only be interpreted as having
a prospective operation. It was also argued that the enquiry,
contemplated under Section 357A Cr.P.C. is in the nature of
evidence to be adduced which itself is indicative of its
prospective application, apart from the words used which takes
in only the immediate possibility of compensation payable and
the future compensation, thereby clearly intending that the
provision has no retrospective application.
8. According to the learned Senior Government Pleader,
the express exclusion of words that cover past transactions is a
clear indication that the provision has prospective operation only
and referred to the provisions of Section 163 of the Motor
Vehicles Act, 1988 now renumbered as Section 161. He also
distinguished the decision in Suresh and Another v. State of
Haryana [(2015) 2 SCC 227] relied upon by the respondents, as
having no application, since that was a case where State's
liability to pay compensation was determined on the basis of
state action or inaction or when the constitutional machinery of
the State failed. Adv.Vinod, argued that the necessity of
rehabilitation of a victim cannot cause prejudice to the accused.
He further submitted that the provisions of Section 357A Cr.P.C.,
is a complete code in itself and each sub clauses of the said
section cannot have different periods of application. Referring to
Article 38 of the Constitution of India, the learned Government
Pleader also argued that it applies to secure social order and
W.P.(C) No.7250/14 -:7:-
since by becoming a victim of a crime, one does not become part
of a social class, nor do the victim's answer a cohesive unit to
become a class and that the constitutional provision has thus no
application.
9. Adv. Leah Rachel Ninan, the learned counsel appointed to
represent respondents 2 to 4, argued, obviously after an in-depth
study of the entire gamut of Section 357A Cr.P.C., that, the
provision applies to past occurrences of crime also. According to
the learned counsel, the concept of Section 357A is akin to a joint
tortfeasor under the civil law, and the legislative attempt by
bringing in Section 357A Cr.P.C. was to make State also a joint
tortfeasor, in a limited manner. It was also argued that the
concept of rehabilitation of the victim is not a new right that was
brought in by Section 357A Cr.P.C., but it is a right that was
always inherent under Article 21 of the Constitution of India. As a
right that was always inherent in a victim, Section 357A(4)&(5)
Cr.P.C. only created a mode of providing compensation, and
hence the same has retrospective application. Adv.Leah Rachel
Ninan further submitted that, even otherwise, Section 357A(4)&
(5) Cr.P.C., being a beneficial provision, benefiting the entire
community of the State, it ought to be interpreted as having a
retrospective effect, relying upon the decision in Commissioner
W.P.(C) No.7250/14 -:8:-
of Income Tax(Central)-I New Delhi v. Vatika Township
Private Limited [(2015) 1 SCC 1]. Learned counsel also relied
upon the decisions in District Collector, Vellore District v.
K.Govindaraj [(2016) 4 SCC 763], Suresh and Another v.
State of Haryana [(2015) 2 SCC 227], as well as Sathya
Prabha v. State of Kerala (2017 (2) KLT 233).
10. Adv. K.S.Aneesh, relied upon the observations in the
decision of a learned Single Judge of this court in Ramesh K.R
and Others v. Central Bureau of Investigation and Another
(2020 (4) KLT 351), and canvassed that a reading of paragraph
11 and 14 of 154th Law Commission Report will reveal that the
amendment brought in as Section 357A to Cr.P.C. was to supply
an obvious omission and that in such cases, the rule against
retrospectivity of the enactment will not have any application. In
the counter affidavit filed by the 2nd respondent, it was pleaded
that, in another instance, for an accident that occurred in 2006,
the State had, in fact, paid compensation to the victim after
357A(4) Cr.P.C. was brought in, which shows the double
standards being adopted by the State.
11. Adv. Keerthivas Giri, the learned Amicus Curiae
submitted that the intention behind the introduction of Section
W.P.(C) No.7250/14 -:9:-
357A Cr.P.C. was to enable the Government to prepare a scheme
for establishing a fund for disbursing compensation to victims.
Relying upon the definition of the word ‘victim’ as appearing in
Section 2(wa), Adv. Keerthivas Giri submitted that a wider ambit
is to be accorded to the said term to include victims of crimes,
where the offender is not traced or identified. The learned
Amicus Curiae further submitted that there was nothing, either in
the Amendment Act of 2008 or in the Cr.P.C., which even
remotely indicated that Section 357A(4)&(5) Cr. P.C must operate
prospectively and on the other hand, all that the provision did
was to institutionalize the concept of victim compensation,
providing a platform for considering applications. It was further
pointed out that the first scheme, contemplated under Section
357A Cr.P.C., was prepared in Kerala in the year 2014 known as
the Kerala Victim Compensation Scheme, 2014, which has now
been replaced by the Kerala Victim Compensation Scheme,
2017.
12. Adv. Keerthivas Giri also submitted that the Amendment
Act of 2008 was a recognition of the concept of victimology and
the compensation payable under Section 357 Cr.P.C. is punitive in
nature, while the compensation awarded under Section 357A is
W.P.(C) No.7250/14 -:10:-
rehabilitative, the source of which is traceable to Article 21 of the
Constitution of India. He bolstered his submissions by relying
upon the decisions in Ankush Shivaji Gaikwad v. State of
Maharashtra [(2013) 6 SCC 770], Mohammed Haroon and
Others v. Union of India and Another [(2014) 5 SCC 252],
and Abdul Majeed C.M. and Others v. Mohammad
Shafeque @ Shafeeque and Others (2016 (1) KHC 613). The
decision in Piyali Dutta v. State of West Bengal and Others
(2017 Cr.L.J 4041) was also pointed out as a case in which a
similar question was considered.
13. The illuminating arguments of all counsel, provided an
interesting experience. Adv. Leah Rachel Ninan and Adv.
Keerthivas Giri augmented their oral submissions with written
notes also.
14. Criminal justice system has undergone a paradigm shift
in its approach to the dispensation of criminal justice, in the last
two decades. Criminal jurisprudence was always accused centric,
with the victim, a forgotten entity. Victim had no role in the
criminal justice system. However, with the advent of the
philosophy of victim compensation, with its avowed purpose not
to award damages analogous to those in cases of tortious
W.P.(C) No.7250/14 -:11:-
liability, but to give solace, by way of compensation out of the
public purse, for the injury sustained, whether the offender had
been brought to trial or not, a new stakeholder, in the criminal
law, was ushered in.
15. The Law Commission of India, in its 152nd and 154th
report, recommended for the inclusion of a new provision in the
Cr.P.C., providing for victim compensation, over and apart from
Section 357 Cr.P.C. While recommending the inclusion of a
scheme for victim compensation, the Commission, reported that
the said scheme is justified from out of the State funds on the
principle that the State has a humanitarian responsibility to
assist crime victims and also that the assistance is provided
because of the social conscience of its citizens and as a symbolic
act of compassion. Victimology was thus proposed as a facet of
criminal jurisprudence.
16. The principles of victimology have their foundations in
Indian constitutional jurisprudence. The fundamental rights under
Part III and the directive principles of state policy in Part IV of the
Constitution of India form the bulwark for a new social order. The
social and economic justice provided in Article 38 and Article 41,
which mandates the State to secure the right to public assistance
in case of disablement and undeserved want, Article 51A which
makes it a fundamental duty to have compassion for living
creatures and to develop humanism. According to the Law
Commission of India, if the above Constitutional provisions are
expanded and interpreted imaginatively, they could form the
constitutional underpinnings for victimology in India.
17. Based on the aforesaid recommendations, the Code of
Criminal Procedure Amendment Act, 2008 (No.5/2009) was
brought into effect. Apart from introducing a definition for the
term ‘victim’ in Section 2(wa), the amendment, inter-alia inserted
a new provision as Section 357A to the Cr.P.C. For reference
‘Section 2(wa)’ and Section 357A Cr.P.C. are extracted as below:
“2. Definitions
In this Code, unless the context otherwise requires,-
xxx xxx xxx xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx xxx xxx xxx
(wa) “victim” means a person who has suffered any loss
or injury caused by reason of the act or omission for
which the accused person has been charged and the
expression “victim” includes his or her guardian or legal
heir.”
“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
dependents who have 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 Services
Authority or the State Legal Services Authority, as the
case may be, shall decide the quantum of compensation
to be awarded under the scheme referred to in subsection
(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.
(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 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.”
18. The definition of the word 'victim' as extracted above
will indicate that it would apply only when the accused has been
charged. This strict interpretation of the definition will create an
apparent contradiction when juxtaposed against Section 357A(4)
Cr.P.C. Under the aforesaid sub-clause of Section 357A, an
application can be made only if the offender is not traced or
identified and the trial does not take place. This anomaly in the
construction of the definition of the word 'victim' is not of
significance, since, like in every definition clause, Section 2 of the
Cr.P.C also starts with the words “In this code, unless the context
otherwise requires”.
19. It is a settled proposition of law that when a strict
application of the definition in a statute will frustrate the
legislative intent of a particular provision or when the defined
word is used and makes the provision unworkable, then recourse
can be had to a different meaning. This recourse to a different
meaning is intended by the legislature by using the legislative
tool in the form of the words “unless the context otherwise
requires”. In the decision in Youaraj Rai and Others v.
Chander Bahadur Karki [(2007) 1 SCC 770], the Supreme
Court held that “Moreover the opening words of Section 2 are
“unless the context otherwise requires”. Hence, while
construing, interpreting, and applying the definition clause, the
court has to keep in view the legislative mandate and intent and
consider whether the context requires otherwise.”
20. Adopting the aforesaid principle of interpretation, if the
word “victim” in Section 357A(4) Cr.P.C., is given the same
meaning as defined in Section 2(wa), then the accused must
have been charged. If the accused is charged, then the offender
is already identified and the trial should also carry on. If the word
victim in Section 357A(4) Cr.P.C, is interpreted based on the
definition in Section 2(wa), it will render the provision in Section
357A(4) and 357A(5) nugatory and redundant. To add meaning
and life to Section 357A(4) Cr.P.C., it is necessary that the
offender under the said sub clause is not traced or identified and
not charged. In that perspective, the word ‘victim’ as appearing
in Section 357A(4) Cr.P.C., ought to be given a different meaning.
The context of Section 357A(4) Cr.P.C., requires a different
meaning to be adopted for the word 'victim'. To add meaning and
life to Section 357A(4) Cr.P.C, it is necessary that the word
'victim' in Section 357A(4) is meant as a person who suffers any
loss or injury by reason of the act or omission of another in which
the offender has not been traced or identified and against whom
a trial has not taken place. Such an interpretation alone would
make Section 357A(4) Cr.P.C., workable, and have meaning.
21. While considering the main question about the
applicability of Section 357A(4) Cr.P.C., to crimes that occurred
prior to the coming into force of the said provision, it is necessary
to appreciate the objects and reasons for bringing in the
amendment. Prior to the Amendment Act 5 of 2009, criminal law
in the country provided for compensation to victims and their
dependents only in a limited manner under Section 357 Cr.P.C.
Under the old Code of 1898, no compensation was payable,
unless a substantive sentence of fine was imposed and the
amount of compensation was limited to the extent of fine
realised, that too, when compensation was, in the opinion of the
court, recoverable by the victim in a civil court. The 1973 Code
made an improvement and it recognised the principle of
compensating the victim, even when no sentence of fine was
imposed.
22. With the observations of the Supreme Court relating to
compensatory justice in criminal law in Hari Singh v. Sukhbir
Singh and Others [(1988) 4 SCC 551], it was felt that the
principles of compensation to crime victims need to be reviewed
and expanded to cover all cases. It was also felt that the
compensation should not be limited only to fines or penalty if
realised, but the State should accept the principle of providing
assistance to victims out of its funds, even in case of acquittals
or where the offender is not traceable or identifiable. It is in this
background and after noticing that the existing provisions for
compensation to crime victims had its own weaknesses that the
Law Commission of India in its 154th report, recommended for
incorporating a provision like Section 357A, to the Cr.P.C., so that
opportunities for securing justice are not denied to any citizen on
grounds of economic or other disabilities.
23. Section 357A Cr.P.C., was brought in with effect from
31.12.2009 through the Code of Criminal Procedure Amendment
Act, 2008, (Act 5 of 2009). The amended provisions do not
mention anywhere that the amendment is prospective or even
retrospective in character.
24. There is no dispute that procedural statutes are
generally retrospective in operation, while statutes that are
substantive are prospective in their application unless by express
stipulation or by necessary intendment, the provisions provide
for otherwise. In the quest to ascertain whether Section 357A(4)
Cr.P.C applies to offences that occurred prior to 31.12.2009, it is
necessary to identify whether the provision is substantive or
procedural.
25. Substantive law is that part of the law, which creates,
defines, and regulate the rights, duties and powers of parties,
while procedural law, as the name itself indicates, relates to that
part of the law, which prescribes procedures and methods for
enforcing rights and duties and for obtaining redress. In simpler
terms, when substantive law creates, defines or regulate rights,
the procedural law creates the method for enforcing or having
redressal for the rights so created. In the celebrated work by
Salmond on ‘Jurisprudence’ (12th Edition, South Asian Edition,
2016), it is stated as follows: “the law of procedure may be
defined as that branch of the law which governs the process of
litigation. It is the law of actions - using the term action in a wide
sense to include all legal proceedings civil or criminal. All the
residue is substantive law, and relates, not to the process of
litigation, but to its purposes and subject matter. Substantive law
is concerned with the ends which the administration of justice
seeks; procedural law deals with the means and instruments by
which those ends are to be attained. The latter regulate the
conduct and relations of courts and litigants in respect of the
litigation itself; the former determines the conduct and relations
in respect of the matters litigated.” In Ramanatha Aiyer’s
Advanced Law Lexicon 4th Edition (2013), substantive law is
stated to be that part of a law that creates, defines, and
regulates the rights, duties, and powers of parties. The Supreme
Court has approved the aforesaid propositions on substantive
law, as can be seen from the decision in Executive Engineer,
Dhenkanal Minor Irrigation Division, Orissa and Others v.
N.C Budharaj and Others [(2001) 2 SCC 721] wherein it was
held that “substantive law is that part of law, which creates,
defines and regulates rights in contrast to what is called
adjective or remedial law which provides a method of enforcing
rights”.
26. A reading of Sections 357A(1)(4)&(5) Cr.P.C., will make it
explicit that the said sub-clauses create a right upon the victim
to obtain an award of compensation on satisfying the conditions
stipulated therein. There was no statutory provision akin to
Section 357A(4) Cr.P.C., earlier. There was neither any remedy
available to a victim to claim compensation against the State
nor was there any obligation for the State to pay compensation
towards a victim, especially when the accused had not been
identified or traced and the trial had not taken place. This court is
mindful of the occasions when the High Courts and Supreme
Court have ordered payment of compensation to victims. As
rightly pointed out by Adv.Vinod, the learned Government
Pleader, those were all instances in which the facts warranted
such a grant of compensation since the crimes were either on
account of State action or inaction. Section 357A(1)(4)&(5)
Cr.P.C., has thus created a right upon a victim in cases where the
offender is not traced or identified and the trial has not taken
place, to obtain compensation, from the State Government for
the rehabilitation of the victim. It has created and defined rights
for a victim, and a duty upon the State Government to pay
compensation. Thus Section 357A(1)(4)&(5) Cr.P.C., is a
substantive law and not procedural law.
27. As a substantive law, the aforesaid statutory provision
will have only prospective application. However, in the case of
Section 357A(1)(4)&(5) Cr.P.C., there is a difference.
Rehabilitation of the victim is the scope, purport and import of
Section 357A(4) Cr.P.C., when read along with Section 357A (1)
Cr.P.C. This is more explicit when understood in the background
of the recommendation of the 154th report of the Law
Commission of India. Rehabilitation of the victim was a remedial
measure. It remedied the weakness in the then existing
provisions for compensating the crime victims, especially to
those victims, whose perpetrators had not been traced. The
provision is remedial. Remedial statutes or provisions are also
known as welfare, beneficent or social justice oriented
legislation.
28. While interpreting a provision brought in as a remedial
measure, that too, as a means of welfare for the victims of
crimes, in which the perpetrators or offenders have not been
identified and in which trial has not taken place, the Court must
always be wary and vigilant of not defeating the welfare intended
by the legislature. In remedial provisions, as well as in welfare
legislation, the words of the statute must be construed in such a
manner that it provides the most complete remedy which the
phraseology permits. The Court must, always, in such
circumstances, interpret the words in such a manner, that the
relief contemplated by the provision, is secured and not denied
to the class intended to be benefited.
29. While interpreting Section 357A(4) Cr.P.C., this Court
cannot be oblivious of the agony stricken face of the victim and
the trauma and travails such victims have undergone, especially
when their offenders have not even been identified or traced out
or a trial conducted. The agonizing face of the victims looms
large upon this Court while considering the question raised for
decision.
30. With the aforesaid principles hovering over Section
357A(4)&(5) Cr.P.C., the provision ought to be interpreted in such
a manner that it benefits victims. If the said benefit could be
conferred without violating the principles of law, then courts
must adopt that approach. A substantive law that is remedial,
can reckon a past event for applying the law prospectively. Such
an approach does not make the substantive law retrospective in
its operation. On the other hand, it only caters to the intention of
the legislature.
31. In other words, when an application is made by a victim
of a crime that occurred prior to the coming into force of Section
357A(4) Cr.P.C., a prospective benefit is given, taking into
reckoning an antecedent fact. Adopting such an interpretation
does not make the statute or the provision retrospective in
operation. It only confers prospective benefits, in certain cases,
to even antecedent facts. The statute will remain prospective in
application but will draw life from a past event also. The rule
against retrospectivity of substantive law is not violated or
affected, merely because part of the requisites for action under
the provision is drawn from a time antecedent to its passing.
Merely because a prospective benefit under a remedial statutory
provision is measured by or dependent on antecedent facts, it
does not necessarily make the provision retrospective in
operation.
32. The above view is fortified by the decision in The
Queen v. The Inhabitants of St. Mary, Whitechapel (1848
12 QB 120) at 127, where Lord, Denman CJ stated that “a statute
is not properly called a retrospective statute because a part of
the requisites for its action is drawn from a time antecedent to
its passing”. The observations in the decision in Master Ladies
Tailors Organisation v. Minister of Labour and National
Service (1950 (2) All ER 525) are also relevant. It was held at
page 527 that “the fact that a prospective benefit is in certain
cases to be measured by or depends on antecedent facts does
not necessarily make the provision retrospective”. The above
referred, two English decisions, were relied upon by the Supreme
Court, in Sree Bank Ltd. (in liquidation) v. Sarkar Dutt Roy
& Co. (AIR 1966 SC 1953), while it was considering the
retrospective application of Section 45O of the Banking
Companies Act, 1949, (brought in by an amendment of 30-12-
1953, as per which the period spent on presenting and pursuing
a winding up petition can be excluded for determining the period
of limitation to revive a time barred debt).
33. In the judgment in Piyali Dutta v. State of West
Bengal and Others (2017 Cr.LJ 4041), the Calcutta High Court
held that Section 357A is time neutral, i.e, it does not distinguish
between victims of a crime happening before the introduction of
the section in the statute with those incidents of crime
happening post its introduction in the statute book. It was also
held that the section does not make any distinction between
victims on the basis of the time of occurrence of the crime and
also that, segregation on the basis of time, is unacceptable and
would militate against the right to equality and equal treatment
by the State guaranteed under the Constitution of India.
34.The learned Amicus Curiae, brought to my attention the
clause on limitation under the scheme framed by the Kerala
Government. Clause 9 of the scheme is extracted as below;
“9. Limitation - No claim made by the victim or his
dependent under subsection 4 of section 357A of the court
shall be entertained after a period of 180 days from the
occurrence of the crime. The District Legal Services
Authority, if satisfied, for reasons to be recorded in writing,
may condone the delay in filing the said claim”.
35. The above extracted clause on limitation prescribed
under the scheme framed by the Kerala Government is not in
tune with Section 357A(4) Cr.P.C. The said clause in the scheme,
can practically render the statutory prescription unworkable and
even defeat the provision itself. In practical parlance, there would
be numerous occasions where the investigation itself is not
completed within 180 days. Law does not stipulate a time limit
for completion of an investigation. To regard an offender as not
identified or traced, the investigation ought to be concluded. If a
limit of time of 180 days from the occurrence of crime is
stipulated for preferring an application under Section 357A(4), it
will only defeat the provision. The restriction of 180 days since
the date of occurrence of the crime for preferring applications
goes against the spirit of Section 357A(4) Cr.P.C. It is certainly
not the intention of the legislature to deny claims for
compensation from victims when the offender has not been
identified or traced within a period of 180 days. However, the
said clause does not apply in the instant case though the
aforesaid is a matter for the State to contemplate and bring in
appropriate modifications.
36. In view of the above deliberations, the following
conclusions are arrived at:
(i) The provisions in Section 357A(1)(4)&(5) Cr.P.C are
substantive in character.
(ii) The victims under Section 357A(4) of the Cr.P.C. are
entitled to claim compensation for incidents that occurred even
prior to the coming into force of the said provision.
(iii) By giving the benefit to victims under Section 357A(4)
Cr.P.C., for crimes that occurred prior to 31.12.2009, the statutory
provision is not given retrospective effect, and instead a
prospective benefit is given based on an antecedent fact.
37. Before concluding, I wish to place on record my deep
appreciation to the commendable efforts put in by Adv. Leah
Rachel Ninan and the learned Amicus Curiae Adv. Keerthivas Giri.
Both of them performed to the fullest extent and justified the
confidence reposed on them by the Court.
As a result, this writ petition is dismissed. However, in the
circumstances of the case, there will be no order as to costs.
Sd/-
BECHU KURIAN THOMAS
JUDGE
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