Paramita Bera & Anr vs The Union Of India & Ors
2023 Latest Caselaw 6018 Cal

              IN THE HIGH COURT AT CALCUTTA
             CONSTITUTIONAL WRIT JURISDICTION
                      APPELLATE SIDE
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Present :
Hon'ble Justice Shekhar B. Saraf


                         WPA 5633 of 2021

                          Paramita Bera & Anr.
                                 Vs.
                        The Union of India & Ors.

Mr. Debashis Banerjee
Mr. Rakesh Jana
                                  ..for the petitioners

Ms. Soma Chowdhury
                            ...for the respondent nos.3 & 4/W.B. S.L.S.A.

,

Heard on: 04.09.2023 & 08.09.2023 Judgement Dictated in Open Court on: 08.09.2023

Shekhar B. Saraf, J.:

1. This writ petition arises out of a very unfortunate incident

wherein the petitioner no.1 being the girl of 17 years and the

petitioner no.2, her brother, being of 14 years old, were assaulted

by way of an acid attack.

2. The claim in the present writ petition has now been limited to

the claim for petitioner no.1 as the petitioner no.2 has been paid a

sum of Rs.4,50,000/- as per the existing Rules. It is the contention

of the petitioners that as per the Apex Court judgements and the

NALSA's Compensation Scheme for Women Victims/Survivors of

Sexual Assault/other Crimes, 2018, a minimum compensation of

Rupees 7 to 8 lacs is payable, with an additional 50% of the said

amount, on account of the victim being a minor girl child.

3. This Court wishes to outline the various Supreme Court

judgements to indicate the manner in which the Supreme Court has

addressed the present issue. The Supreme Court in Laxmi Vs.

Union of India & ors., reported in (2014) 4 SCC 427 held that the

compensation mentioned in the scheme framed by different states

was not uniform and in some states was inadequate. The Supreme

Court had directed the States to frame their own rules and to

ensure that compensation of a minimum of Rupees 3 lacs was paid

to the victims. Subsequently, the Supreme Court in Parivartan

Kendra Vs. Union of India & ors., reported in (2016) 3 SCC 571

considered the physical, economic, social, and psychological

ramifications of being the victim of an acid attack. The relevant

paragraph is delineated below :

"17. Considering the plight of the victim we can sum up that:

(i) The likeliness of the victim getting a job which

involves physical exertion of energy is very low.

(ii) The social stigma and the pain that she has to go

through for not being accepted by the society

cannot be neglected. Furthermore, the general

reaction of loathing which she would have to

encounter and the humiliation that she would have

to face throughout her life cannot be compensated

in terms of money.

(iii) As a result of the physical injury, the victim will

not be able to lead a normal life and cannot dream

of marriage prospects.

(iv) Since her skin is fragile due to the acid attack she

would have to take care of it for the rest of her life.

Therefore, the aftercare and rehabilitation cost that

has to be incurred will have huge financial

implications on her and her family."

The aforementioned insight was central to the Supreme Court

in summing up the manner in which compensation is

required to be payable. The relevant paragraphs are

delineated below:

"19. The guidelines issued by orders in Laxmi case [Laxmi v.

Union of India & ors., (2014) 4 SCC 427, Laxmi v.

Union of India, & ors., (2014) 13 SCC 743, Laxmi v.

Union of India & ors, (2016) 3 SCC 669] are proper,

except with respect to the compensation amount. We

just need to ensure that these guidelines are implemented

properly. Keeping in view the impact of acid attack

on the victim's social, economical, and personal life,

we need to enhance the amount of compensation. We

cannot be oblivious of the fact that the victim of acid

attack requires permanent treatment for the damaged

skin. The mere amount of Rs 3 lacs will not be of any

help to such a victim. We are conscious of the fact

that enhancement of the compensation amount will

be an additional burden on the State. But prevention

of such a crime is the responsibility of the State and

the liability to pay the enhanced compensation will

be of the State. The enhancement of the compensation

will act in two ways:

(i) It will help the victim in rehabilitation;

(ii) It will also make the State to implement the

guidelines properly as the State will try to

comply with it in its true spirit so that the

crime of acid attack can be prevented in

future.

20. Having regard to the problems faced by the victims, this

Court in Laxmi v. Union of India & ors., (2014) 4 SCC

427 by an order dated 18-7-2013, enhanced the

compensation, stating that, "at least Rs 3 lacs must be

paid to the victims of acid attacks by the Government

concerned". Therefore, a minimum of Rs 3 lacs is to

be awarded by the Government to each victim of the

acid attack. In the present case, a minimum amount

of Rs 6 lacs has to be awarded to the sisters.

21. In peculiar facts of the case, we are of the view that

victim Chanchal deserves to be awarded a

compensation more than what has been prescribed

by this Court in Laxmi case. Though in this case we

are not issuing any guidelines different from the

guidelines issued in Laxmi case [Laxmi v. Union of

India, (2014) 4 SCC 427] , we should not forget that

the younger sister was also injured by the acid

attack. Although her degree of suffering is not as

that of the elder one, but she also requires

treatment and rehabilitation. It is to be noted that this

Court in Laxmi case [Laxmi v. Union of India & ors.,

(2016) 3 SCC 669] does not put a bar on the

Government to award compensation limited to Rs 3

lacs. The State has the discretion to provide more

compensation to the victim in the case of acid

attack as per Laxmi case [Laxmi v. Union of India, (2016)

3 SCC 669] guidelines. It is also to be noticed that this

Court has not put any condition in Laxmi case

[Laxmi v. Union of India & ors., (2016) 3 SCC 669] as

to the degree of injuries which a victim has suffered

due to acid attack. In the instant case, the victim's

father has already spent more than Rs 5 lacs for the

treatment of the victim. In consideration of the severity of

the victim's injury, expenditure with regard to grafting and

reconstruction surgery, physical and mental pain, etc., we

are of the opinion that the victim (Chanchal) should be

compensated to a tune of at least Rs 10 lacs. Suffice it to

say that the compensation must not only be awarded

in terms of the physical injury, we have also to take

note of the victim's inability to lead a full life and to

enjoy those amenities which is being robbed of her

as a result of the acid attack. Therefore, this Court

deems it proper to award a compensation of Rs 10 lacs

and accordingly, we direct the Government concerned to

compensate the victim Chanchal to the tune of Rs 10 lacs,

and in light of the judgment given in Laxmi case [Laxmi v.

Union of India, (2016) 3 SCC 669 : (2015) 5 Scale 77] we

direct the State Government of Bihar concerned to

compensate the main victim's sister, Sonam to a tune of Rs

3 lacs. Of the total amount of Rs 13 lacs, a sum of Rs 5

lacs shall be paid to the victim and her family within a

period of one month and the remaining sum of Rs 8 lacs

shall be paid to the victims within a period of three months

from the date of this order. ....."

4. It may be noted that the Calcutta High Court also in Serina

Mondal @ Piyada Vs. State of West Bengal & ors., reported in

2018 SCC Online Cal 4238 has made relevant observations

regarding the objective of Section 357A of the Code of Criminal

Procedure, 1973 and the West Bengal Victim Compensation

Scheme, 2017. Such observations are delineated below :

"10. The object and purpose of the Scheme of 2017 which

itself replaced an earlier scheme of the year 2012 is inter

alia that a victim of a serious crime specially a woman

needs urgent and immediate attention and both physical

and mental rehabilitation. Such rehabilitation from the

nature of the scheme and Section 357A is not dependent

on the pace on which either the investigation is conducted

or the trial is carried on. If this be the object and purpose

of the Scheme and Section 357A read as a whole, I cannot

countenance the findings of the State Legal Services

Authority in the impugned order that both the

requirements i. e. accused not being traced or identified as

well as the factum of trial not having commenced, need be

satisfied.

11. Compensation is awarded under the scheme as

formulated pursuant to Section 357A (supra) as the

fundamental rights of the victim under Article 21 have

been in fact violated. Denial of compensation to such

victim would continue such violation and perpetrate gross

inhumanity on the victim in question. This cannot be the

object of Section 357A and the 2017 Scheme referred to

hereinabove. I therefore hold that both the

requirements the accused not being identified or

traced as also that the trial should not have

commenced, need not be satisfied for entitlement of

compensation under the 2017 scheme.

12. There is yet another way to address the issue. If the

accused have not been identified a trial cannot commence

anyway. The Legislature could not have imposed an

occurrence leading to the same result twice over, as a

condition precedent. Any multiple preconditions must be

independent occurrences. Two similar events cannot form

two different conditions."

5. The latest judgement of the Supreme Court in Nipun Saxena

& anr. Vs. Union of India & ors., reported in (2020) 18 SCC 499

is of primary importance to the present case and the relevant

paragraphs are delineated below :

"7. We have gone through the Scheme prepared by NALSA

with the assistance of the learned Amicus Curiae and we are

of the view that it contains the best practices of all

similar schemes and should be implemented by all the

State Governments and Union Territory

Administrations.

8. ......We make it clear that the Scheme postulates only

the minimum requirements. This does not preclude the

State Governments and Union Territory Administrations

from adding to the Scheme. However, nothing should be

taken away from the Scheme."

6. It appears from a reading of the aforementioned judgements

and specifically the judgement in Nipun Saxena & anr. Vs.

Union of India & ors. (supra) that the Supreme Court has

directed all States to follow the best practices stipulated in

NALSA's Compensation Scheme for Women Victims/Survivors

of Sexual Assault/other Crimes, 2018. The Apex Court's

judgement has created an obligation upon the State

Governments to have similar provisions in consonance with

such Scheme. The NALSA's Compensation Scheme for

Women Victims/Survivors for Sexual Assault/other Crimes,

2018 provides that acid attack victims with face

disfigurement, must get compensation ranging from a

minimum of Rupees 7 lacs to a maximum compensation of

Rupees 8 lacs. The Scheme also postulates that minor victims

are eligible for compensation that is 50% higher than the

minimum amount specified in the Scheme. The relevant

clauses in the Scheme have been delineated below:

"2. Definitions:

(j) 'Minor' means a girl child who has not completed the age of

18 years.

SCHEDULE APPLICABLE TO WOMEN VICTIM OF CRIMES

S. No. Particulars of Minimum Upper Limit of loss or injury Limit of Compensation Compensation 13 Victims of Acid Attack-

 a.         In case of         Rs. 7 Lakh   Rs. 8 Lakh
            disfigurement of
            face


9. PROCEDURE FOR GRANT OF COMPENSATION -

(3) After consideration of the matter, the SLSA or DLSA, as the

case may be, upon its satisfaction, shall decide the quantum of

compensation to be awarded to the victim or her dependent(s)

taking into account the factors enumerated in Clause 8 of the

Scheme, as per schedule appended to this chapter. However,

in deserving cases, for reasons to be recorded, the upper limit

may be exceeded.

Moreover, in case the victim is minor, the limit of

compensation shall be deemed to be 50% higher than the

amount mentioned in the Schedule appended to this

chapter."

7. It appears that the State of West Bengal has not complied

with the mandate of the Supreme Court in Nipun Saxena & anr.

Vs. Union of India & ors (supra) and has failed to amend its own

scheme of compensation in tune with NALSA's Compensation

Scheme for Women Victims/Survivors of Sexual Assault/other

Crimes, 2018.

8. This Court, accordingly, directs the Government of West

Bengal to immediately act in accordance with the Supreme Court

judgement and frame its scheme as per NALSA's Compensation

Scheme for Women Victims/Survivors of Sexual Assault/other

Crimes, 2018 within a period of eight weeks from date. With regard

to the present case, it is clear that the girl child was a minor and is

accordingly eligible for a minimum amount of Rupees 7,00,000/-,

as compensation as per NALSA's Compensation Scheme for Women

Victims/Survivors of Sexual Assault/other Crimes, 2018 and an

additional 50% of the said minimum amount (i.e., Rupees

3,50,000/-) is payable to the victim on account of her being a minor

girl child. Accordingly, the total compensation payable to the victim

is Rupees 10,50,000/- (as Rupees 3,50,000-/- is to be added to the

minimum compensation of Rupees 7,00,000/-).

9. In light of the same, the State of West Bengal is directed to

pay the further sum of Rupees 7,50,000/- to the State Legal

Services Authority, West Bengal who shall disburse the entire sum

to petitioner no.1 (as Rupees 3,00,000/- has been paid to the

petitioner no.1) within a period of four weeks from date.

An Afterword:

10. Mr. Gopal Krishna Gokhale, the prominent freedom fighter,

had once said "what Bengal thinks today, India thinks tomorrow" -

this saying was so relevant in the early 1900's; however, the

position today is antithetical and the State of West Bengal lags in

almost all areas of progress and governance as well as following

best practices that are mandated by the Supreme Court of India. It

is unfortunate that this State, which was once known for its

progressive feminist discourse, with women such as Begum Rokeya

Sakhawat Hossain, Sarojini Naidu Chattopadhyay and many

others, has forgotten its feminist roots. The State Government

should take note of Bengal's rich feminist history and ensure that

Gokhale's saying once again finds relevance in today's time.

11. With the above directions, this writ petition is disposed of.

12. Let a copy of this order be immediately sent by the Registrar

general, High Court of Calcutta to the West Bengal State Legal

Services Authority and the Advocate General for taking appropriate

action as directed in the order above.

13. All parties are to act on website copy of this order.

,,

(Shekhar B. Saraf, J.)