Delhi High Court
Saif Ali @ Sohan vs The State Nct Of Delhi on 24 January, 2025
Bench: Rekha Palli, Prathiba M Singh, Subramonium Prasad
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20.12.2024
Date of decision: 24.01.2025
+ BAILAPPLN.1959/2021
SAIF ALI @ SOHAN ......Petitioner
Versus
THE STATE GNCT OF DELHI ......Respondent
+ W.P.(CRL)1054/2021 & CRL.M.(BAIL)722/2021
RAJINDER SINGH ......Petitioner
Versus
STATE ......Respondent
+ CRL.A.352/2020 & CRL.M.A.12830/2024
KARAN ......Petitioner
Versus
STATE GNCT OF DELHI ......Respondent
Appearances:
For Petitioners:
Mr. Kanhaiya Singhal, Mr.Prasanna & Ms.Anisha Rastogi, Advs. in
CRL.A. 352/2020
For Respondents:
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 1 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
Mr.Vikas Pahwa, Sr. Adv. (Amicus Curiae) with Mr. Prabhav Ralli
&Ms. Sanskriti Shakuntala Gupta, Advs. in Bail Appln.1959/2021
&W.P.(CRL) 1054/2021.
Mr.Ayush Puri, Mr.Sultan Haider Jafri &Mr. Kanav Madnani, Advs.
for R1 &R2 in BAIL APPLN.1959/2021.
Mr.Rajiv Khosla, Mr.Amit Sharma, Mr.Sunil Singh & Mr.Sanjay
Dubey, Advs. for the Applicant in CRL.A. 352/2020
Ms.Rupali Bandhopadhya, ASC (Crl.), GNCTD with Mr.Abhijeet
Kumar, Adv.
Mr.Harsh Prabhakar, Mr.Yash Kotak, Ms.Pallavi Garg, Mr.Annirudh
Tanwar, Mr.Dhruv Chaudhary, Mr.Adeeb Ahmad &Ms.Eshita
Pallavi, Advs. for DSLSA.
Mr.Aman Usman,APP with Insp. Sidinesh Kumar,P.S.Nand Nagri,
Insp. Ravi Kumar, P.S. Baba Haridas Nagar &W/SI Sushma, P.S.
Najafgarh.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
HON'BLE MS. JUSTICE PRATHIBA M SINGH
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
HON'BLE MR. JUSTICE SAURABH BANERJEE
HON'BLE MR. JUSTICE MANOJ JAIN
REKHA PALLI, J.
JUDGMENT
1. This Larger Bench has been constituted upon the orders of Hon’ble the
Chief Justice pursuant to the order dated 05.08.2021 passed in W.P.(CRL)
1054/2021 & CRL.M.B. 722/2021. Vide the said order, the learned Single
Judge, while taking note of the inordinate delay in passing of orders on
sentence as a result of the implementation of the directions issued vide the
decision of a Full Bench of this Court in Criminal Appeal 352/2003 titled
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 2 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
“Karan v. State of NCT of Delhi“, observed that any modification of the
directions issued by the Full Bench could be considered only by a Full
Bench and, therefore, directed that the matter be placed before a Full Bench
for modification of the guidelines issued in Karan (supra). Consequently, a
Full Bench was constituted by Hon’ble the Chief Justice on 27.08.2021. The
Full Bench so constituted, after considering the submissions of the parties,
on 26.04.2024, directed that subject to orders of Hon’ble the Acting Chief
Justice, the matter be listed before a Larger Bench. It is in these
circumstances that this Larger Bench has been constituted.
2. We may begin by noting that in Karan (supra), the Full Bench upon
consideration of the provisions of Sections 357 and 357A of the Code of
Criminal Procedure, 1973 (“Cr.P.C.”) (now Sections 395 and 396 of the
Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS)) for assessment and
payment of victim compensation, issued directions laying down the detailed
procedure to be followed by Trial Courts for assessing the quantum of victim
compensation payable under Section 357, Cr.P.C.. Vide the directions so
issued, the Full Bench not only prescribed the steps to be taken by the Trial
Court after passing of order on conviction but also laid down the timeframe
within which each of these steps must be completed before an order on
sentence is passed.
3. It is also pertinent to note that on 03.06.2021, the learned Single Judge
while dealing with W.P.(Crl) 1054/2021 and BAIL APPLN. 1959/2021
wherein bail was being sought noted that several similar cases were coming
up before this Court, wherein, persons who already stand convicted were
seeking bail on account of no order on sentence having been passed by the
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 3 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
Trial Court. Consequently, reports were sought from the DSLSA regarding
adherence to the time period and submission of Victim Impact Reports
(hereinafter “VIRs”) to the Trial Court as per the directions issued in Karan
(supra).Vide its report dated 20.06.2021, the Delhi State Legal Services
Authority (hereinafter “DSLSA”) informed the Court that in compliance
with the directions of this Court in Karan (supra), a detailed Standard
Operation Procedure (SOP),”Proceedings for Assistance of Compensation
Computation in view of the Judgment in Criminal Appeal 352/2003 Titled
“Karan v. State of NCT of Delhi” (“PAC-C Protocol”), had been prepared
laying down the procedure to be followed for determining victim
compensation after conviction of the accused.
4. According to the guidelines on which the SOP of DSLSA is based,
upon the pronouncement of judgment on conviction and supply of a copy
thereof to the convict, 10 days is being granted to the convict/accused to
submit his affidavit detailing his financial capacity to pay compensation to
the victim. In its report, the DSLSA also pointed out that this period was
often being extended beyond 10 days due to various reasons, including non-
availability of a copy of the conviction order, inadequate legal representation
for the convict, and absence of his family members. Time was also being
spent in supplying a copy of the affidavit to the DSLSA, whereafter, as per
the guidelines, the DSLSA was required to gather supplementary material
and information, with the assistance of the SDM’s office for preparation of
the VIR for submission to the Trial Court. This entire process, it was pointed
out, even as per the DSLSA’s SOP, takes a minimum of 40 days but was
often extending to months together.
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 4 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
5. The learned Single Judge, therefore, observed that on account of the
procedure which the Trial Court was now required to follow, which
procedure involved filing of a VIR by the DSLSA in every case, orders on
sentence were being pronounced after a considerable delay of upto 2 years
from the date of passing of conviction order. Consequently, the accused who
is required to await the order on sentence remains incarcerated for months
together without being able to file an appeal seeking consideration of his
prayer for suspension of sentence by the Appellate Court.
6. During the pendency of these two matters before the learned Single
Judge, the VIRs were submitted by the DSLSA and consequently,
appropriate orders on sentence were passed by the respective Trial Court.
Resultantly, even though the bail applications before the learned Single
Judge became infructuous, the learned Single Judge, on 05.08.2021, opined
that the unusual delay occasioned in the receipt of a VIR violated the
constitutional right of an accused to speedy trial and, therefore, expressed
the need for reconsideration of the guidelines issued by the Full Bench in
Karan (supra) to ensure a reduction in the timelines prescribed thereunder.
The relevant extracts of the order dated 05.08.2021, as contained in
paragraphs nos. 6 and 7 thereof, reads as under:
“6. In view of the time period provided in the decision of
the Full Bench and also that the same cannot be strictly
adhered to as often the filing of affidavit by the accused
and the verification thereof takes time, the time gap
between passing of the judgment of conviction and the
order on sentence has increased drastically. The
unusual delay caused in receiving the Victim Impact
Report violates the constitutional right of an accused for
a speedy trial as also puts the accused in a piquant
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 5 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
situation, as if the accused is on bail he is required to
be taken in custody at the time of passing of the
judgment of conviction, and in the absence of an order
of sentence having been passed, his sentence cannot
be suspended, thereby requiring this Court to relook
the guidelines and ensure reduction in the period
prescribed as far as possible and if deemed
appropriate certain compliances be sought in advance
during the trial.
7. In view of the practical difficulty being faced due to
the delay in receipt of the Victim Impact Report, for
which though efforts have been made to expedite the
same by the Delhi State Legal Services Authority, an
accused cannot be left without any remedy. Since the
directions have been issued by the Full Bench of this
Court and any modification therein will also be required
to be carried out by the Full Bench, list these petitions
before Hon’ble the Chief Justice for constitution of a
Full Bench for modification of the guidelines issued.”
7. In terms of the order passed by the learned Single Judge on 05.08.2021
Full Bench comprising of three Judges was constituted, which, as noted
hereinabove, opined that the matter should be placed before a Larger Bench.
Accordingly, a Larger Bench was constituted, and this is how the present
matter for reconsideration of the guidelines issued in Karan (supra) has
been placed before us. We are, therefore, required to consider whether the
guidelines should be modified or should be altogether revoked.
8. It may also be apposite to note that while these matters were pending
consideration, Mr. Rajiv Khosla, a practising Advocate of this Court, moved
an application bearing no. 12830/2024 in Karan (supra) seeking setting
aside/modification of the guidelines issued by the Full Bench. Considering
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 6 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
the significant implications the present matters hold, for the Criminal Justice
System and on the rights of all stakeholders in Delhi, including the accused
persons as also the victims and their families, we have, besides hearing
learned counsel for the parties, also considered the submissions of the
learned Amicus Curiae, Mr Vikas Pahwa, Senior Advocate, Mr Harsh
Prabhakar, Advocate appearing on behalf of DSLSA and Mr Rajiv Khosla,
Advocate.
9. Before proceeding to deal with the question arising for our consideration
and the submissions of learned counsel for the parties, we may briefly refer
to the factual matrix of the two matters placed before us.
10. In W.P.(Crl) 1054/2021, the petitioner was convicted on 10.12.2020 but
could not apply for suspension of sentence or seek bail from the Trial Court
as the order on sentence was yet to be passed for want of the VIR, which in
terms of the judgment in Karan (supra), was required to be prepared by the
DSLSA. Consequently, the petitioner who could not file an appeal at that
stage approached this Court by way of a writ petition seeking grant of bail.
11. In similar circumstances, the petitioner in BAIL APPLN. 1959/2021
was, on 20.10.2020, convicted under Sections 5 and 6 of the POCSO Act,
but was unable to file an appeal due to non-passing of an order on sentence.
Consequently, he approached this Court on 03.07.2021 seeking bail by
contending that since the order on sentence had not been passed even after
eight months from the date of his conviction, he was unable to file a
statutory appeal and, therefore, the only remedy available to him was to
approach this Court by way of a bail application.
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 7 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
12. In support of their prayer for setting aside the guidelines issued by the
Full Bench in Karan(supra), Mr Prabhakar, learned counsel for the DSLSA
as also Mr. Rajiv Khosla, Advocate, have both urged that though the right of
the victims to receive compensation, either from the accused or from the
DSLSA, has to be safeguarded, once Section 357 of the Cr.P.C. does not
contemplate the role of the State Legal Services Authority in determining
compensation as opposed to the provisions of Section 357A, Cr.P.C., which
requires the State to form a scheme for victim compensation, the guidelines
issued by the Court in Karan (supra), mandating recommendations by way
of a VIR from the DSLSA even in cases covered under Section 357, Cr.P.C.
was not permissible. They have contended that assigning a role to the Legal
Services Authority i.e. DSLSA, which was not envisaged by the Statute
would amount to rewriting the legislative provisions.
13. In support of his aforesaid plea, Mr Prabhakar has, by relying on the
decisions in P Ramachandra Rao v. State of Karnataka (2002) 4 SCC 578
and Common Cause (A Regd Society) v. Union of India, (2008) 5 SCC 511,
urged that as per Section 357, Cr.P.C., it is the function of the Court to
determine compensation, which function could not have been delegated to a
committee, i.e., the DSLSA merely by way of guidelines having no statutory
backing and that too only on the premise that since the DSLSA has the
expertise in determining compensation under the Delhi Victim
Compensation Scheme as envisaged under Section 357A, Cr.P.C., it should
give its recommendations for determining compensation under Section 357,
Cr.P.C. as well. The schemes for award of compensation as envisaged by the
legislature under Sections 357 and 357A, Cr.P.C. being different, they have
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 8 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
contended, this Court could not have imported the mechanism provided
under Section 357A of the Cr.P.C. for the procedure to be adopted by the
Trial Court for determining victim compensation under Section 357 of the
Cr.P.C. as well.
14. Mr Prabhakar and Mr Khosla have further urged that as a result of the
mandatory procedure laid down in Karan (supra), which requires not only
affidavits to be filed both by the accused and the State/prosecution but also
preparation of a VIR by the DSLSA, enormous delay, sometimes running
into years, was being caused in passing of orders on sentence. Consequently,
the accused persons continue to remain in custody after conviction without
being given the opportunity to file a statutory appeal and seek suspension of
sentence as per law.
15. They have submitted that while issuing the impugned guidelines, the
Full Bench in Karan (supra) has proceeded to misinterpret the observations
of the Apex Court in Ankush Shivaji Gaikwad v. State of Maharashtra
(2013) 6 SCC 770. This decision, they submit, while underscoring the
significance of victim compensation, neither mandates any specific
procedure to be followed by Trial Courts for conducting an inquiry to
determine the quantum of compensation nor requires the accused to file an
income affidavit as a precondition for awarding victim compensation under
Section 357 of the Cr.P.C.. Consequently, it has been urged, that the
guidelines issued in Karan (supra) have led to an anomalous situation where
an altogether different procedure for the purposes of awarding victim
compensation under Section 357, Cr.P.C. is being followed by the Trial
Courts in Delhi. This procedure, they have submitted, is evidently leading to
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 9 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
inordinate delays in passing of orders on sentence, thus, violating the
constitutional rights of the accused.
16. Mr Prabhakar and Mr Khosla have finally urged that the directions
issued in Karan (supra) requiring the convict to disclose his income and
assets by way of an affidavit alongwith the details of the assets of his family
members are also violative of Articles 20 and 21 of the Constitution of India
as also of Sections 315 and 316 of the Cr.P.C. (Sections 353 and 354 of the
BNSS). The disclosure of information required to be made by the accused by
way of an affidavit would not only amount to self-incrimination but there
was also the danger of this information being used by other investigating
agencies such as the Enforcement Directorate, etc to implicate the accused.
They have, therefore, contended that even if information regarding the
paying capacity of the accused was required for determining victim
compensation, the same could be obtained either from the ITR of the
accused or from his statement under Section 313, Cr.P.C., without
compelling him to disclose this information on oath.
17. Mr Aman Usman, the learned APP has also highlighted the practical
difficulties which the accused faces in filing his affidavit qua his income and
assets as required under the guidelines. He has urged that in cases where the
prescribed sentence is more than three years, the convict, if not already in
judicial custody, is immediately taken into custody upon conviction.
Resultantly, while in jail, he does not have the resources or mechanism to
file the requisite affidavit detailing his financial position and that too within
the period of 10 days prescribed under the guidelines. Furthermore, this
problem is compounded in cases where the accused have already been in
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 10 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
custody for many years, and therefore, they are unable to ascertain the
details of their assets and income within the prescribed time.
18. Mr. Vikas Pahwa, the learned Amicus Curiae, in line with the pleas
taken by the learned counsel for the parties, has also urged that the discretion
vested with the Trial Court to quantify and award victim compensation
under Section 357, Cr.P.C. could not have been delegated to the DSLSA.
His plea being, that while Section 357A, Cr.P.C. explicitly envisages the
role of the State Legal Services Authority in determining compensation, the
said Authority cannot give any recommendations qua the compensation
payable under Section 357, Cr.P.C.. The provisions of Section 357, Cr.PC
clearly and unequivocally vest the discretion to award victim compensation
with the Trial Court and, therefore, the same could not have been delegated
to the DSLSA as directed under the guidelines.
19. Mr. Pahwa has further urged that even if the Trial Court requires any
assistance for determining the quantum of victim compensation to be
awarded, the said information can, without associating the DSLSA, be easily
ascertained by issuing appropriate directions to the SHO/I.O.This procedure,
he submits, is being followed by the Motor Accident Tribunal while
adjudicating “Motor Accident Claims” where reports are called from the
SHO/I.O. itself. This practice being followed by the Tribunal has been
approved by the Apex Court in Jai Prkash v National Insurance Co. Ltd.
2010 (2) SCC 607 and Gohar Mohammad v. Uttar Pradesh State Road
Transport Corporation (2023) 4 SCC 381. His plea being that the
investigating officer is equipped with the mechanism to carry out a detailed
verification with respect to the accused as well as the victim and, thus, there
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 11 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
is no reason that this duty to collect information and submit
recommendations qua the quantum of compensation to be awarded by the
Court under Section 357, Cr.P.C. should be assigned to the DSLSA.
20. He has also emphasised that as a result of the procedure prescribed in
Karan (supra), inordinate delay in passing of orders on sentence was being
caused, which delay was not only on account of delay in furnishing of
affidavits either by the prosecution or by the convict, but also on account of
administrative reasons, including the heavy workload with the DSLSA. He
has, therefore, urged that the timelines prescribed in Karan (supra) could be
shortened by directing the accused persons to file their affidavits well in
advance, i.e., prior to their conviction itself. According to him, the requisite
financial information pertaining to the accused could be collected at two
stages, firstly at the stage of framing of charge and then again at the stage of
recording of his statement under Section 313 Cr.P.C.. His contention being
that the accused can be asked to file a preliminary affidavit setting out his
assets and liabilities at the stage of framing of charges itself and thereafter be
asked to file an updated affidavit reflecting any changes in his income,
assets, or liabilities during the trial. It is his plea that if this procedure were
to be followed, it would not only reduce unnecessary delays but also ensure
that correct financial information was available with the Court.
21. Finally, he has urged that requiring the accused to submit an affidavit of
his assets and income would not, in any manner, be violative of his
constitutional rights, either under Article 20 or Article 21 of the Constitution
of India. In support of his plea, he has sought to place reliance on the
decisions of the Apex Court in Selvi v. State of Karnataka 2010 (7) SCC
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 12 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
263 and State of U.P v. Sunil 2017 (14) SCC 516. He has contended that
even though Article 20(3) of the Constitution of India prohibits compelling
an accused to give his testimony which would be self-incriminatory,
directing him to provide information only for the purposes of determining
his financial position would not be barred thereunder. His plea, therefore,
being that such information would not amount to self-incrimination as the
same would neither’furnish a link in the chain of evidence’against him nor in
any manner lead to his incrimination in the case against him.
22. Having considered the submissions of the learned counsel for the parties,
we may begin by noting that the parties are ad idem that in terms of Section
357, Cr.PC (Section 395 of the BNSS), victim compensation is required to
be awarded by the Trial Court at the time of passing of order on sentence.
However, this provision while making it mandatory for the Court to pass
orders for grant of victim compensation in appropriate cases, neither lays
down the procedure to be followed by Trial Courts nor specifies the factors
which must be considered while deciding whether to grant compensation
and, if yes, the quantum thereof. The Full Bench in Karan (supra), while
highlighting the significance of granting compensation to victims and their
families in paragraph nos. 156 to 167 of its decision, formulated a
framework outlining the steps to be followed by the Trial Courts for
awarding compensation under Section 357, Cr.P.C.. It may, therefore, be
apposite to refer at this stage itself to paragraph nos. 156 to 167 of the
judgment, which read as under:
“156. Victims are unfortunately the forgotten people in
the criminal justice delivery system. Victims are the
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 13 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
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 Cr.P.C.
159. Section 357 Cr.P.C. 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) Cr.P.C. 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 Cr.P.C. is intended to reassure the
victim that he/she is not forgotten in the criminal justice
system.
162. Section 357 Cr.P.C. is a constructive approach to
crimes. It is indeed a step forward in our criminal
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 14 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
justice system.
163. The power under Section 357 Cr.P.C. is not
ancillary to other sentences but in addition thereto.
164. The power under Section 357 Cr.P.C. is to be
exercised liberally to meet the ends of justice in a better
way.
165. Section 357 Cr.P.C. 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) Cr.P.C. means
“shall‟ and therefore, Section 357 Cr.P.C. is
mandatory.
167. The Supreme Court in Ankush Shivaji Gaikwad
(supra) has given directions that the Courts shall
consider Section 357 Cr.P.C. in every criminal case
and if the Court fails to make an order of compensation,
it must furnish reasons.”
23. It is also the common case of the parties that under the provisions of
Section 357A of the Cr.P.C. (Section 396 of the BNSS) a scheme, in
coordination with the Central Government, is required to be prepared by
every State Government for providing funds for the purposes of awarding
compensation to the victim or his dependents who have suffered loss or
injury as a result of the crime and require rehabilitation.This compensation
to be paid by the State under the Victim Compensation Scheme so framed is
in addition to the fine as may have been imposed by the Trial Court under
Sections 326A, 376AB, 376D, 376DA and 376DB of the Indian Penal Code
(Sections 65, 70 and 124 (1) of the BNSS.)
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 15 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
24. Learned counsel for the parties as also the learned Amicus Curiae have
further urged that while the right of the victims to receive compensation
either from the accused under Section 357, Cr.PC and/or from the DSLSA
under Section 357A, Cr.PC has to be safeguarded, it is the mandatory
procedure laid down in Karan (supra) for determining victim compensation
under Section 357, Cr.P.C. which is leading to delay in passing of orders on
sentence. It is their plea that even if the Court in Karan (supra) was justified
in framing guidelines for determining the eligibility of the victim to receive
compensation as also the quantum of compensation, the formats for the
affidavits to be furnished by the accused and the State directed under the
guidelines are leading to inordinate delay in passing of orders on
compensation and sentence.
25. In order to appreciate this plea of the parties, we may now refer to the
guidelines issued by the Full Bench, which we may note have been issued in
exercise of its powers under Article 227 of the Constitution of India. The
same are contained in paragraph nos. 168 to 178 of the decision and read as
under:
“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
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 16 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
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 alongwith the supporting
documents within 30 days.
175. Upon receipt of the affidavit of the accused, the
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 17 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
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 Cr.P.C. 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.”
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 18 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
26. From the aforesaid, what emerges is that while laying down the
framework for the steps to be followed by Trial Courts for determining
compensation under Section 357, Cr.P.C., this Court also specified the time
frame for each of the steps required to be followed by the Trial Courts before
passing orders on sentence and victim compensation. This framework was
intended to standardize the process of passing orders for victim
compensation and makes the DSLSA responsible for working out the
amount required to be awarded as compensation under Section 357 of the
Cr.P.C. by holding a summary inquiry. This direction to the DSLSA was
issued on the premise that the DSLSA was already conducting similar
inquiries under the Delhi Victim Compensation Scheme and was, therefore,
well conversant with the manner of conducting such inquiries for
determining compensation.
27. It also emerges that the procedure laid down by this Court requires
filing of an affidavit of income and assets by the accused, an affidavit by the
State disclosing expenses incurred on prosecution and thereafter, by way of a
VIR, recommendations qua the quantum of compensation to be made by the
DSLSA, based on which the Trial Court then passes an order for award of
compensation, if any, to the victim, alongwith the order on sentence.We also
find that by way of these guidelines, this Court besides laying down the
procedure to be followed by the Trial Courts for determining and awarding
victim compensation also prescribed the formats not only of the affidavits
required from the accused and the prosecution but also the format for the
preparation of VIR by the DSLSA. Furthermore, the Court also specified the
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 19 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
documents which the accused is required to submit with his affidavit of
income and assets.
28. The DSLSA, in its written submissions, by way of the tabulation noted
hereinbelow, has explained the steps required to be taken as per the
guidelines alongwith the timelines prescribed therefor and has stated that an
SOP in this regard has been framed by them:
S.No. Description of task/event Timeline
1 Trial Court pronounces the Judgment of X
Conviction
2 Convict is directed to file an affidavit of its
assets and income before the Trial Y (X + 10
Court. days)
3 State discloses the expenses incurred on X + 30 days
prosecution on affidavit to the Trial
Court
4 The Trial Court forwards the affidavit (No timeline
received from the convict along with a
prescribed)
copy of its judgment to the DSLSA
5 DSLSA upon receipt of the copy of the Y + 30 days
judgment and the affidavit of the
(No separate
convict, shall conduct the summary
timeline
inquiry with the assistance of SHO and
prescribed in
SDM concerned and submit the 'Victim
the Judgment
Impact Report' to the Trial Court.
for
compliance
by
SHO/SDM.)
5 Trial Court upon considering affidavit of (No timeline
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 20 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
State/prosecution and the 'Victim
prescribed)
Impact Report' passes Order on
sentence
29. From the aforesaid, what emerges is that as per the guidelines,10 days’
time is granted to the accused and 30 days’ time is granted to the State for
filing their respective affidavits, whereafter the DSLSA is required to
conduct a summary inquiry, and then prepare its report (VIR). Consequently,
it is evident that, as per the SOP issued by the DSLSA in tune with the
guidelines, the entire process has to be completed within a period of 40 days
as the State is required to quantify the expenses incurred on prosecution
within the same period of 30 days during which the DSLSA is required to
conduct its inquiry and prepare the VIR. It has, however, been urged before
us that in practice, these timelines are rarely being adhered to as the entire
process is inherently time consuming. This, we have been informed, is due
to various reasons, including delay on part of the accused in furnishing his
affidavit of income and assets, delay on part of the State in quantifying the
expenses towards prosecution and finally, delay on part of the DSLSA in
verifying the affidavits submitted by the accused/prosecution and preparing
the VIR.
30. It is only after this process which requires not only affidavits, from
both the convict/accused as also the prosecution but also a summary inquiry
by the DSLSA and submission of a VIR to the Trial Court is completed that
the Trial Court can consider passing an appropriate order on sentence
alongwith an order awarding compensation. As noted hereinabove, it is the
common stand of all the parties that this composite process laid down under
the guidelines, though expected to be completed within 40 days, often takes
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 21 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
months together, with the period often extending to over an year.
Consequently, this causes inordinate delay in passing of orders on sentence,
which cannot be passed till victim compensation under Section 357, Cr.P.C.
in accordance with the directions issued in Karan (supra), is determined.
Resultantly, in the absence of an order on sentence, the judgment cannot be
treated as complete and, therefore, the accused is unable to file an appeal
under Section 374 Cr.P.C. (Section 415 of the BNSS). In this regard,
reference may be made to the following observations of the Apex Court in
Rama Narang v. Ramesh Narang (1995) 2 SCC 513:
“13. Chapter XXVII deals with judgment. Section 354 sets out the
contents of judgment. It says that every judgment referred to in
Section 353 shall, inter alia, specify the offence (if any) of which
and the section of the Penal Code, 1860 or other law under which,
the accused is convicted and the punishment to which he is
sentenced. Thus a judgment is not complete unless the
punishment to which the accused person is sentenced is set out
therein. Section 356 refers to the making of an order for notifying
address of previously convicted offender. Section 357 refers to an
order in regard to the payment of compensation. Section 359
provides for an order in regard to the payment of costs in non-
cognizable cases and Section 360 refers to release on probation of
good conduct. It will thus be seen from the above provisions that
after the court records a conviction, the accused has to be heard
on the question of sentence and it is only after the sentence is
awarded that the judgment becomes complete and can be
appealed against under Section 374 of the Code.”
(Emphasis supplied)
31. In the light of the aforesaid uncontroverted factual position, we find
that two questions arise for our consideration in the present matter. The first
being as to whether the Full Bench in Karan (supra) could, in exercise of its
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 22 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
powers under Article 227 of the Constitution of India, set down the detailed
stepwise procedure to be followed by the Trial Courts for determining
compensation under Section 357, Cr.P.C. and delegate the task of
conducting an inquiry for the purposes of determining the quantum of
compensation payable under the said provision. An ancillary question
thereto would be whether the Court could prescribe the formats in which
information should be sought from the accused regarding his financial
condition by way of an affidavit. If the answer to the first question is in the
affirmative, the next question then would be, whether the guidelines issued
in Karan (supra) need to be modified in any manner, and if yes, the extent
of the modifications required.
32. To answer the first question, it would be apposite to begin by noting
that these guidelines have been issued by the Court in exercise of its powers
of superintendence under Article 227 of the Constitution of India, for which
purpose we may refer to the following observations of the Court:
“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 powersrelating 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
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 23 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
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.”
33. We may now note the provisions of Sections 357, Cr.P.C. (identical to
Section 395 of the BNSS) which make it obligatory for the Trial Court to
consider granting compensation to the victim in appropriate cases while
passing an order on sentence. The same reads as under:
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
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 24 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
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.
(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.
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 25 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
34. Since it has been urged by learned counsel for the parties that while
issuing the guidelines for determining the compensation payable, if any,
under Section 357, Cr.P.C., this Court in Karan (supra) has wrongly
adopted the procedure applicable only to cases covered under Section 357A,
Cr.P.C, we may also refer to Section 357A, Cr.P.C. This provision we find,
lays down the framework for compensation to be awarded by the State Legal
Services Authority, by way of a Victim Compensation Scheme which is to
be framed by the State Government, in consultation with the Central
Government. The same reads as under:
“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 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.
(5) On receipt of such recommendations or on the
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 26 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
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 incharge of the police station or a
Magistrate of the area concerned, or any other interim relief as
the appropriate authority deems fit.”
35. From a perusal of the aforesaid provisions of Sections 357 and 357A,
Cr.P.C., what clearly emerges is that under the Code, while the State Legal
Services Authority is required to step in for the purposes of awarding
compensation in the eventualities specified in Section 357A, Cr.P.C., under
Section 357, Cr.P.C. the said Authority has no role in passing of orders
awarding victim compensation. It is, thus, evident that in accordance with
the scheme of Section 357, Cr.P.C. it is the sole prerogative of the Trial
Court to compute and award victim compensation under cases covered by
this provision.
36. This distinction between the procedure to be followed for determining
compensation under Sections 357 and 357A of the Cr.P.C., we find is crystal
clear and in our considered opinion, could not have been ignored by the Full
Bench. Once the statute does not envisage a role for the DSLSA under
Section 357 of the Cr.P.C., it was not open for this Court to assign the very
task of conducting an inquiry for the purposes of determining the quantum of
compensation payable, if any, to the DSLSA. The legislature having
explicitly conferred the discretion to assess and award victim compensation
under Section 357, Cr.P.C. only on the Trial Courts, the DSLSA could not
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 27 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
be asked to make recommendations in this regard and that too by simply
borrowing the mechanism envisaged under Section 357A, Cr.P.C., which
provision operates in an entirely different field. The directions requiring the
DSLSA to conduct a summary inquiry for determination of victim
compensation after conviction of the accused would, in our view, amount to
clothing the DSLSA with a power which the legislature does not envisage.
This delegation would, therefore, be contrary to the very scheme of Section
357, Cr.P.C., which unambiguously vests the Trial Courts with the discretion
to determine what would be fair and equitable under the circumstances, for
which purpose the Court is required to take into account the peculiar facts of
each case.
37. In this regard, reference may be made to the following observations of
the Constitution Bench in P Ramachandra Rao v. State of Karnataka
(2002) 4 SCC 578, wherein the Apex Court while dealing with the time limit
fixed by the Court for conclusion of criminal proceedings, held as under:
“25. The primary function of the judiciary is to interpret
the law. It may lay down principles, guidelines and
exhibit creativity in the field left open and unoccupied
by legislation. Patrick Devlin in The Judge(1979) refers
to the role of the Judge as law-maker and states that
there is no doubt that historically, Judges did make law,
at least in the sense of formulating it. Even now when
they are against innovation, they have never formally
abrogated their powers; their attitude is:”We could if
we would but we think it better not.” But as a matter of
history, did the English Judges of the golden age make
law? They decided cases which worked up into
principles. The Judges, as Lord Wright once put it in an
unexpectedly picturesque phrase, proceeded “from case
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 28 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
to case, like the ancient Mediterranean mariners,
hugging the coast from point to point and avoiding the
dangers of the open sea of system and science”. The
golden age Judges were not rationalisers and, except in
the devising of procedures, they were not innovators.
They did not design a new machine capable of
speeding ahead; they struggled with the aid of fictions
and bits of procedural string to keep the machine on
the road.
(Emphasis supplied)
26. Professor S.P. Sathe, in his recent work (year
2002) Judicial Activism in India — Transgressing
Borders and Enforcing Limits, touches the topic
“Directions : A New Form of Judicial Legislation”.
Evaluating legitimacy of judicial activism, the learned
author has cautioned against court “legislating” exactly
in the way in which a legislature legislates and he
observes by reference to a few cases that the guidelines
laid down by court, at times, cross the border of
judicial law-making in the realist sense and trench
upon legislating like a legislature.
“Directions are either issued to fill in the gaps in the
legislation or to provide for matters that have not been
provided by any legislation. The court has taken over
the legislative function not in the traditional interstitial
sense but in an overt manner and has justified it as
being an essential component of its role as a
constitutional court.” (p. 242).
“In a strict sense these are instances of judicial
excessivism that fly in the face of the doctrine of
separation of powers. The doctrine of separation of
powers envisages that the legislature should make law,
the executive should execute it, and the judiciary should
settle disputes in accordance with the existing law. In
reality such watertight separation exists nowhere and is
impracticable. Broadly, it means that one organ of the
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 29 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
State should not perform a function that essentially
belongs to another organ. While law-making through
interpretation and expansion of the meanings of open-
textured expressions such as ‘due process of law’,
‘equal protection of law’, or ‘freedom of speech and
expression’ is a legitimate judicial function, the making
of an entirely new law … through directions … is not a
legitimate judicial function.” (p. 250).
(Emphasis supplied)
27. Prescribing periods of limitation at the end of
which the trial court would be obliged to terminate the
proceedings and necessarily acquit or discharge the
accused, and further, making such directions applicable
to all the cases in the present and for the future amounts
to legislation, which, in our opinion, cannot be done by
judicial directives and within the arena of the judicial
law-making power available to constitutional courts,
howsoever liberally we may interpret Articles 32, 21,
141 and 142 of the Constitution. The dividing line is
fine but perceptible. Courts can declare the law, they
can interpret the law, they can remove obvious lacunae
and fill the gaps but they cannot entrench upon in the
field of legislation properly meant for the legislature.
Binding directions can be issued for enforcing the law
and appropriate directions may issue, including laying
down of time-limits or chalking out a calendar for
proceedings to follow, to redeem the injustice done or
for taking care of rights violated, in a given case or set
of cases, depending on facts brought to the notice of the
court. This is permissible for the judiciary to do. But it
may not, like the legislature, enact a provision akin to or
on the lines of Chapter XXXVI of the Code of Criminal
Procedure, 1973.”
(Emphasis supplied)
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 30 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
38. It would also be apposite to refer to the decision of the Apex Court in
Common Cause (A Regd Society) (supra), wherein it was observed as
under:
“36. We would also like to advert to orders by some
courts appointing committees and giving these
committees power to issue orders to the authorities or
to the public. This is wholly unconstitutional. The
power to issue a mandamus or injunction is only with
the court. The court cannot abdicate its function by
handing over its powers under the Constitution or CPC
or Cr.P.C. to a person or committee appointed by it.
Such “outsourcing” of judicial functions is not only
illegal and unconstitutional, it is also giving rise to
adverse public comment due to the alleged despotic
behaviour of these committees and some other
allegations. A committee can be appointed by the court
to gather some information and/or give some
suggestions to the court on a matter pending before it,
but the court cannot arm such a committee to issue
orders which only a court can do.”
(Emphasis supplied)
39. In the light of the aforesaid, we are of the considered view that even
though under Article 227 of the Constitution of India, the High Court has
the power to fill lacunae in the legislation by issuing guidelines, the Court
cannot, under the garb of issuing guidelines, legislate and lay down
parameters which only the legislature is entitled to promulgate. In the
present case, the Full Bench has, by way of the guidelines issued in Karan
(supra), delegated the obligation imposed on the Trial Court to determine
the quantum of compensation under Section 357, Cr.P.C. to the DSLSA. In
our opinion, by issuing such directions delegating the responsibility of
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 31 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
recommending the quantum of victim compensation to be awarded under
Section 357, Cr.P.C. to the DSLSA, the Court has, in fact, sought to
obliviate the distinction drawn by the legislature between Sections 357 and
357A of the Cr.P.C. and, therefore,the directions issued in Karan (supra)
virtually amount to rewriting the legislative provisions of Section 357,
Cr.P.C. which, as noted hereinabove, do not envisage any recommendations
from the State Legal Services Authority.
40. It also emerges that in issuing the guidelines laying down the procedure
to be followed by the Trial Courts for awarding compensation, the Full
Bench took note of the decision in Ankush Shivaji Gaikwad (supra),
wherein the Apex Court underscored the importance of adopting a victim
centric approach while awarding compensation under Section 357, Cr.P.C.
We, however, find that while emphasising on the duty of the Court to
consider in each case whether compensation should be awarded to the
victim, the Apex Court explained that in determining whether compensation
should be awarded to the victim or not, the Court must apply its mind to all
relevant factors and if necessary, hold a summary inquiry. In this regard,
reference may be made to paragraph no. 66 of the decision in Ankush
Shivaji Gaikwad (supra) which reads as under:
“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
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 32 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
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 Cr.P.C. 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
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.”
41. It is, thus, evident that even the Statute as also the decision of the Apex
Court in Ankush Shivaji Gaikwad (supra) requires the Court itself to
determine whether compensation is to be paid to the victim and, if yes, the
quantum thereof. We, however, find that the Full Bench while issuing the
impugned guidelines, not only delegated this task to the DSLSA but has
also, by way of Annexures A, B and B-1 forming part of the guidelines,
prescribed the format for the affidavit of income and assets to be furnished
by the accused as also for the affidavit to be submitted by the prosecution.
Further, even the format for preparation of VIR by the DSLSA has been set
out in the judgment itself. When the legislature is silent regarding the factors
which the Court may take into account for determining compensation under
Section 357 Cr.P.C., there was absolutely no justification to prescribe the
formats either for the affidavit or for the VIR.
42. We are, therefore, of the view that even though the High Court has both
supervisory as well as administrative powers to regulate administration of
justice and, therefore, can issue directions to the Trial Court, these directions
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 33 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
are required to be in consonance with the legislative scheme. In our opinion,
by prescribing such rigid formats for the affidavit of the accused as also of
the prosecution, alongwith the format in which the VIR is to be prepared by
the DSLSA, the Full Bench has virtually taken away the discretion of the
Court under Section 357, Cr.P.C. to quantify and award victim
compensation by taking into account the facts peculiar to each case. In our
considered view, when the legislature has deliberately not set down any
fixed criteria or rule regarding the factors to be considered while awarding
victim compensation under Section 357 Cr.P.C., the compartmentalisation of
factors enumerated in the formats as has been prescribed by the Full Bench
amounts to curtailing the very discretion of the Trial Court and, therefore,
these guidelines are liable to be set aside on this ground also.
43. Now, coming to the plea of the learned counsel for the parties that the
directions to the accused/convict to file an affidavit on oath, disclosing his
assets/income fall foul of his right against self-incrimination as enshrined
under Article 20(3) of the Constitution of India as also Sections 315 and 316
of the Cr.P.C. (Sections 353 and 354 of the BNSS). In this regard we may
begin by noting that while learned counsel for the parties, by relying on
Section 4(2) of the Oaths Act, 1969 and Section 313 of the Cr.P.C. (Section
351 of the BNSS), have urged that requiring the convict to file an affidavit
regarding his financial capacity would be violative of his constitutional and
statutory rights, the learned Amicus Curiae has contended otherwise and has
submitted that the requirement of filing an affidavit of income and assets by
the accused cannot be treated as being violative of either Article 20(3) of the
Constitution of India or of Section 313, Cr.P.C.
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 34 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
44. To appreciate this plea of the parties, it would be apposite to first refer
to the provisions of Section 4(2) of the Oaths Act, 1969, which stipulate that
it shall not be lawful to administer oath or affirmation upon the accused
person in criminal proceedings unless he is examined as a witness for the
defence. The same read as under:
“4. Oaths or affirmations to be made by witnesses,
interpreters and jurors
(1) Oaths or affirmations shall be made by the following
persons, namely:
(a) all witnesses, that is to say, all persons who may lawfully
be examined, or give, or be required to give, evidence by or
before any Court or person having by law or consent of
parties authority to examine such persons or to receive
evidence;
(b) interpreters of questions put to, and evidence given by,
witnesses; and
(c) jurors:
Provided that, where the witness is a child under twelve years
of age, and the Court or person having authority to examine
such witness is of opinion that, though the witness
understands the duty of speaking the truth, he does not
understand the nature of an oath or affirmation, the
foregoing provisions of this section and the provisions of
section 5 shall not apply to such witness; but in any such case
the absence of an oath or affirmation shall not render
inadmissible any evidence given by such witness nor affect
the obligation of the witness to state the truth.
(2) Nothing in this section shall render it lawful to
administer, in a criminal proceeding, an oath or affirmation
to the accused person, unless he is examined as a witness
for the defence, or necessary to administer to the official
interpreter of any Court, after he has entered on the
execution of the duties of his office, an oath or affirmation
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 35 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
that he will faithfully discharge those duties.”
(Emphasis supplied)
45. We may now refer to Section 313 of the Cr.P.C., which deals with the
power of the Trial Court to examine the accused by asking him such
questions as deemed necessary. The same reads as under:
“313. Power to examine the accused.
(1) In every inquiry or trial, for the purpose of enabling the
accused personally to explain any circumstances appearing
in the evidence against him, the Court –
(a) may at any stage, without previously warning the
accused, put such questions to him as the Court considers
necessary;
(b) shall, after the witnesses for the prosecution have been
examined and before he is called on for his defence, question
him generally on the case :
Provided that in a summons-case, where the Court has
dispensed with the personal attendance of the accused, it may
also dispense with his examination under clause (b).
(2) No oath shall be administered to the accused when he is
examined under sub-section (1).
(3) The accused shall not render himself liable to
punishment by refusing to answer such questions, or by
giving false answers to them.
(4) The answers given by the accused may be taken into
consideration in such inquiry or trial, and put in evidence for
or against him in any other inquiry into, or trial for, any
other offence which such answers may tend to show he has
committed.
(5) [ The Court may take help of Prosecutor and Defence
Counsel in preparing relevant questions which are to be put
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 36 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
to the accused and the Court may permit filing of written
statement by the accused as sufficient compliance of this
section.] [Inserted by Code of Criminal Procedure
(Amendment) Act, 2008 (5 of 2009), Section 22.]”
(Emphasis supplied)
46. It would also be useful to refer to Sections 315 and 316 of the Cr.P.C.
(pari materia to Sections 353 and 354 of the BNSS), which, in line with the
provisions of Section 313, Cr.P.C., reinforce the principle that an accused
cannot be compelled to give evidence. The same read as under:
“315. Accused person to be competent witness.
(1)Any person accused of an offence before a Criminal Court
shall be a competent witness for the defence and may give
evidence on oath in disproof of the charges made against him
or any person charged together with him at the same trial:
Provided that -(a)he shall not be called as a witness except
on his own request in writing;
(b)his failure to give evidence shall not be made the subject
of any comment by any of the parties or the Court or give rise
to any presumption against himself or any person charged
together with him at the same trial.
(2)Any person against whom proceedings are instituted in
any Criminal Court under Section 98, or Section 107, or
Section 108, or Section 109, or Section 110, or under
Chapter IX or under Part B, Part C or Part D of Chapter X,
may offer himself as a witness in such proceedings :Provided
that in proceedings under Section 108, Section 109 or Section
110, the failure of such person to give evidence shall not be
made the subject of any comment by any of the parties or the
Court or give rise to any presumption against him or any
other person proceeded against together with him at the same
inquiry.”
“316. No influence to be used to induce disclosure.
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 37 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
Except as provided in Sections 306 and 307, no influence, by
means of any promise or threat or otherwise, shall be used to
an accused person to induce him to disclose or withhold any
matter within his knowledge.”
47. From a cumulative reading of Section 4(2) of the Oaths Act, 1969 and
Section 313 (2) and (3) Cr.P.C., it clearly emerges that the accused person
can at no stage of the trial be asked to make a statement on oath. Further, his
refusal to answer any questions put to him by the Court under Section 313,
Cr.P.C. cannot render him liable to punishment. Not only this, even Section
315 of the Cr.P.C. is hedged with a caveat that the failure of the accused to
give evidence would not result in any presumption against him. Similarly,
Section 316, Cr.P.C. provides that except as provided in Sections 306 and
307 of the Cr.P.C. (Sections 343 and 344 of the BNSS), no influence, by
means of any promise or threat or otherwise, shall be used upon an accused
to induce him to disclose or withhold any matter within his knowledge. In
the light of the aforesaid, when not only the provisions of the Oaths Act but
also the Cr.P.C. (now the BNSS) make it clear that despite the power of the
Court to examine the accused under Section 313, Cr.P.C., he cannot be
compelled to make a statement on oath, the directions issued in Karan
(supra) requiring the accused to give details of his income and assets by way
of an affidavit in the format prescribed, would certainly not be in
consonance with the scheme envisaged under Sections 313, 315 and 316 of
the Code.
48. Despite the aforesaid legislative scheme, from which it appears that the
accused cannot be compelled to make a statement on oath, the learned
Amicus Curiae has, by relying on the decision in Selvi (supra), urged that
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 38 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
seeking information from the accused regarding his financial position by
way of an affidavit would neither be violative of Article 20(3) of the
Constitution of India nor of Sections 313 and 315, Cr.P.C.. His plea being
that the bar to seek information on oath applies only to information which
may lead to self-incrimination and therefore, there is no impediment in
seeking the details regarding the financial status of the accused as the same
has neither any connection with the evidence led during the trial nor in any
manner amounts to self-incrimination. In order to appreciate this plea of the
learned Amicus Curiae, we may refer to the following observations of the
Apex Court as contained in paragraph no. 145 of the decision in Selvi
(supra):
“145. The next issue is whether the results gathered
from the impugned tests amount to `testimonial
compulsion’, thereby attracting the prohibition of Article
20(3). For this purpose, it isnecessary to survey the
precedents which deal with what constitutes `testimonial
compulsion’ and how testimonial acts are distinguished
from the collection of physical evidence. Apart from the
apparent distinction between evidence of a testimonial
and physical nature, some forms of testimonial acts lie
outside the scope of Article 20(3). For instance, even
though acts such as compulsorily obtaining specimen
signatures and handwriting samples are testimonial in
nature, they are not incriminating by themselves if they
are used for the purpose of identification or
corroboration with facts or materials that the
investigators are already acquainted with. The relevant
consideration for extending the protection of Article
20(3) is whether the materials are likely to lead to
incrimination by themselves or `furnish a link in the
chain of evidence’ which could lead to the same result.
Hence, reliance on the contents of compelled testimony
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 39 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
comes within the prohibition of Article 20(3) but its use
for the purpose of identification or corroboration with
facts already known to the investigators is not barred.”
49. From the aforesaid observations of the Apex Court, it emerges that the
learned Amicus Curiae is correct in urging that the bar under Article 20(3) of
the Constitution of India would be applicable only to material which is likely
to lead to self-incrimination of the accused or furnish a link in the chain of
evidence and could lead to self-incrimination. It would, therefore, be
permissible to seek information from the accused on oath as may be used
only for the purposes of identification or which otherwise has no connection
with the charge against him. We are, however, of the view that the
information regarding the list of his assets and income from the accused
cannot be said to be so innocuous so as to not impact the accused at all.
Further, there is also merit in the plea of the learned counsel for the parties
that the information provided by the accused regarding his financial status
may sought to be used by other investigating agencies such as the
Enforcement Directorate and, therefore, may amount to self-incrimination.
We, therefore, have no hesitation in agreeing with the learned counsel for the
parties that the direction to the accused/convict to furnish an affidavit
detailing his assets and liabilities would be violative of both his
constitutional and statutory rights.
50. Finally, we may now deal with the plea of the learned counsel for the
parties that the mandatory steps required to be followed under the guidelines
before an order for compensation can be passed by the Court was causing
inordinate delay in passing of orders on sentence, thereby violating the right
of the accused to speedy trial as envisaged under Article 21 of the
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 40 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
Constitution of India. This plea, we may note, has also been pressed by the
learned Amicus Curiae. It has been submitted by learned counsel for the
parties as also by the learned Amicus Curiae that even though specific
timelines have been set down in the guidelines, for furnishing of affidavits
both by the accused and the State/prosecution as also for furnishing of VIR
by the DSLSA, these timelines are in practice not being followed. This is on
account of various reasons; firstly, the delay in furnishing the affidavit of
income and assets by the accused, which could be because the accused who
has been in custody for a long time may not be aware of the details of his
assets or may not have the necessary resources to collect information
regarding his assets. It could also be because the accused does not belong to
Delhi and, therefore, time may be required by him to collect the requisite
financial information. We have also been informed that the prosecution is
also often unable to file its affidavit in the prescribed period of 30 days.
51. The parties have further contended that as the process for verification of
information furnished by the accused and the prosecution is time consuming,
even the time required for preparation of the VIR by the DSLSA often
exceeds the timeline set down in the guidelines. The fact that the timelines
prescribed in the guidelines for submission of affidavits and VIR are not
being adhered to, is evident from the details of the ‘District Wise Status of
Pendency of VIR’ furnished by the DSLSA, in its report filed before this
Court. Further, we have been informed by the learned counsel for the
DSLSA that taking into account the verifications which are required to be
made, it would not be feasible to prepare the VIR by reducing the prescribed
timeline under the guidelines.
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 41 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
52. In the light of the aforesaid stand taken by the DSLSA, there can be no
doubt about the position that after the issuance of guidelines in Karan
(supra) inordinate delay is being caused in passing of orders on sentence and
consequently, convicts all across Delhi are made to languish in jail to await
the orders on sentence after their conviction. This prolonged detention of the
accused, during which he is disabled from exercising his right to file an
appeal under Section 374 of the Cr.P.C. (Section 415 of the BNSS) would
certainly be unjust, unfair and unreasonable. We are, therefore, inclined to
agree with the learned counsel for the parties that on account of the
mandatory procedure set down under the guidelines, the statutory as well as
the fundamental rights of the accused for speedy trial are being violated.
53. In the light of the aforesaid, we are of the considered view that the
directions issued by the Full Bench in Karan (supra) for associating the
DSLSA for determining the quantum of compensation, if any, to be awarded
under Section 357 of the Cr.P.C. (Section 395, BNSS) are unsustainable and
are required to be set aside. We, accordingly, declare that the guidelines
issued by the Full Bench in paragraph nos. 169 to 187 of Karan (supra),
would no longer be operative and, therefore, will not be required to be
followed any further by the Trial Courts in any pending trials. This would,
however, not have any impact on cases where the trial already stands
concluded with the sentence being awarded after following the procedure
laid down under these guidelines. In view of our aforesaid conclusion, that
the guidelines issued in Karan (supra) are liable to be set aside, we do not
deem it necessary to deal with the submission of the learned Amicus Curiae
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 42 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
that the guidelines may be modified to reduce the delay in passing of orders
on sentence and compensation.
54. Having said so and making it clear that the guidelines set out in Karan
(supra) would no longer be enforceable, we direct that the learned Trial
Courts would, while passing orders of compensation, if any, to the victims
under Section 357 Cr.P.C. (Section 395, BNSS) adopt a victim centric
approach. In determining the compensation, if any, payable, under Section
357, Cr.P.C., the Trial Court may take into account the income and assets of
the accused and any other factors as may be deemed appropriate, for which
purpose information may be elicited not only from the I.O./prosecuting
agency but also from the accused, who will, however, not be asked to make
any statement on oath or by way of an affidavit. We however make it clear
that this order will not preclude the learned Trial Courts from seeking
assistance of the DSLSA, as and when deemed necessary. Needless to state,
these directions will have also no effect on the manner in which
compensation is required to be awarded under Section 357A, Cr.P.C.
(Section 396 BNSS) after consultation with the DSLSA.
55. The two petitions alongwith all pending applications as also the
application being CRL. M.A. 12830/2024 in Karan (supra) are accordingly
disposed of in the aforesaid terms.
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 43 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47
56. Before we conclude, we would be failing in our duty if we do not place
on record our appreciation for the valuable assistance rendered to this Bench
by the learned Amicus Curiae, Mr.Vikas Pahwa, Senior Advocate as also by
the learned counsel for all the parties who have not only meticulously
highlighted the legal issues but have also drawn our attention to the practical
difficulties arising as a result of implementation of the guidelines.
57. Copy of this judgment be forwarded to the Registrar General of this
Court who shall send the same to the District Judge (HQs) for being
circulated to all concerned Courts.
(REKHA PALLI)
JUDGE
(PRATHIBA M. SINGH)
JUDGE
(SUBRAMONIUM PRASAD)
JUDGE
(SAURABH BANERJEE)
JUDGE
(MANOJ JAIN)
JUDGE
JANUARY 24, 2025
acm/kk/sr/bs
Signature Not Verified
BAILAPPLN.1959/2021 & other connected matters Page 44 of 44
Digitally Signed
By:GARIMA MADAN
Signing Date:24.01.2025
19:22:47