Alekjan Nessa vs The State Of Assam And 3 Ors
2022 Latest Caselaw 947 Gua

                                                                 Page No. 1/7

GAHC010043572022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/1903/2022

            ALEKJAN NESSA
            W/O- LATE AMIR BADSHA,
            VILL- LATIBARI PART-III,
            VILL- LATIBARI, P.S- ABHYAPURI,
            DIST- BONGAIGAON, ASSAM,
            PIN-783384

            VERSUS

            THE STATE OF ASSAM AND 3 ORS
            REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT.
            OF ASSAM, HOME AND POLITICAL DEPARTMENT, DISPUR, GUWAHATI-6

            2:ASSAM STATE LEGAL SERVICES AUTHORITY
             REPRESENTED BY THE MEMBER SECRETARY
             GUWAHATI 781001

            3:THE DISTRICT LEGAL SERVICES AUTHORITY
             BONGAIGAON
             REPRESENTED BY ITS SECRETARY
             P.O
             P.S AND DIST- BONGAIGAON
            ASSAM 783380

            4:THE CHAIRMAN
             DISTRICT LEGAL SERVICES AUTHORITY
             BONGAIGAON
            ASSAM.
            P.O
             P.S AND DIST- BONGAIGAON
            ASSAM
             PIN-78338

Advocate for the Petitioner   : MR. M U MONDAL
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Advocate for the Respondent : GA, ASSAM

                                     BEFORE
                    HONOURABLE MR. JUSTICE MANISH CHOUDHURY

                                            ORDER

Date : 21-03-2022

Heard Mr. K. Islam, learned counsel for the petitioner and Mr. K. Goswami, learned Additional Senior Government Advocate, Assam for all the respondents.

2. The case of the petitioner, as projected in this writ petition, is that, she is the wife of one Amir Badsha. The petitioner has asserted that on 22.05.2003, her husband Amir Badsha was murdered by 4 [four] persons near Abhayapuri Bazar. In respect of the said incident, the petitioner lodged a First Information Report [FIR] before the Officer In-Charge, Abhayapuri Police Station on 22.05.2003 alleging inter-alia that her husband was murdered by the 4 [four] accused persons named therein. On receipt of the said FIR, a crime case being Abhayapuri Police Station Case no. 54/2003 [G.R. Case no. 90/2003], was registered for offences under Sections 147/148/302, Indian Penal Code [IPC]. After completion of investigation, the Investigating Officer [I.O.] of the case submitted a charge sheet under Section 173[2], CrPC finding a prima facie case under Section 302, IPC against one accused person. On submission of the charge sheet, the case was committed to the Court of learned Sessions Judge, Bongaigaon and on committal, Sessions Case no. 36[A]/2005 was registered. Upon appearance of the accused person, charges were framed and thereafter, the trial commenced. After conclusion of the trial, the Court of learned Sessions Judge delivered its judgment and order dated 16.06.2010 finding the accused person who stood the trial, guilty for the offence under Section 302, IPC and he has been sentenced to undergo rigorous imprisonment for life and to pay a fine of ₹ 2,000/-, with default stipulation.

3. The learned counsel for the petitioner has submitted that the learned trial court while rendering the judgment and order of conviction and sentence, did not make any order for grant of compensation to the petitioner as a victim under the provisions of 357A, Code of Criminal Procedure, 1973 ['CrPC' or 'the Code'].

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4. Section 357A, CrPC has provided in the following manner :-

"357A. Victim Compensation Scheme [1] Every State Government in coordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.

[2] Whenever a recommendation is made by the Court for compensation, the District Legal Services Authority or the State Legal Services Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in 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 application under sub- section [4] the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.

[6] The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit."

5. In exercise of the powers conferred by sub-section [1] of Section 357A of the Code, Page No. 4/7

the Government of Assam in coordination with the Central Government has prepared a scheme, "the Assam Victim Compensation Scheme, 2012" ['the Victim Compensation Scheme, 2012', for short] for providing funds for the purpose of compensation to the victim or his/her dependents who have suffered loss of injury as a result of the crime and who require rehabilitation. As per Clause 2[f] of the said Scheme, 'Victim' means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and expression 'Victim' includes his or her guardian or legal heir.

6. Clause 5 has provided for the procedure for grant of compensation and Clause 8 has provided for the provision of appeal. For ready reference, Clause 5 and Clause 8 are also quoted hereinunder :-

[5. Procedure for Grant of Compensation -

[1] Whenever a recommendation is made by the Court or an application is made by any victim or his dependents under sub-section [2] of Section 357A of the Act, to the State Legal Services Authority or the District Legal Services Authority, as the case may be, the said Authorities respectively shall examine the case and verify the contents of the claim with regard to the loss or injury caused to victim and arising out of the reported criminal activity and may call for any other relevant information necessary in order to determine genuineness. After verifying the claim, the District Legal Services Authority or the State Legal Services Authority, as the case may be, shall, after due inquiry, award compensation within two months, in accordance with provisions of this Scheme, [2] Compensation under this Scheme shall be paid subject to the condition that if the trial court while passing judgment at later date, orders the accused persons to pay any amount by way of compensation under sub-section [1][b] of Section 357 of the Act, the victim/dependents shall remit an amount of compensation, or the amount ordered equal to the amount of compensation or the amount ordered to be paid under sub-section [3] of section 357 of the Act, Page No. 5/7

whichever is less. An undertaking to this effect shall be given by the victim/dependents before the disbursal of the compensation amount.

[3] The District Legal Services Authority shall decide the quantum of compensation to be awarded to the victim or these dependents on the basis of loss caused to the victim, medical expenses to be incurred on treatment, minimum sustenance amount required for rehabilitation including such incidental charges as funeral expenses etc. The Compensation may vary from case to case depending on facts and circumstances of each case.

[4] According to the Schedule of this Scheme, the quantum of compensation to be awarded under the Scheme shall be disbursed to the victim or his dependents, as the case may be, from the Fund. [5] Compensation received by the victim from the Central Government, State Government, Insurance Company or any other institution in relation to the crime in question namely, insurance, ex-gratia and/or payment received under any other Act or State-run- scheme, shall be considered as part of the compensation amount under this scheme and if the eligible compensation amount exceeds the payments received by the victim from collateral sources mentioned above, the balance shall be paid out of the Fund.

[6] In fixing the quantum of compensation, regard must be had to the minimum wages and schedule to Motor Vehicle Act, 1988.

[7] The State or the District Legal Services Authority, to alleviate the suffering of the victim, may order for immediate first aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer-in-charge of the police station of Magistrate of the area concerned or any other interim relief as it may deem fit.

[8] The compensation to the victim under this scheme shall not exceed the maximum amount prescribed in the Schedule.

[9] State Government may review the maximum limit of compensation indicated in the Schedule by issuing official notification from time to time.

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8. Appeal -

Any victim aggrieved of the denial of compensation by the District Legal Services Authority, may file an appeal before the State Legal Services Authority within a period of ninety days from the date of order of denial :

Provided that the State Legal Services Authority, if satisfied, for the reasons to be recorded in writing, may condone the delay in filing the appeal.

7. As per sub-clause [1] of Clause 5, a provision is made to submit an application by any victim or his dependents under sub-section [2] of Section 357A of the Act, to the State Legal Services Authority or the District Legal Services Authority, as the case may be. On receipt of such an application, the concerned Authority shall examine the case and verify contents of the claim with regard to the loss or injury caused to victim and arising out of the reported criminal activity. In order to examine such claim, the concerned Authority may also call for any other relevant information necessary in order to determine genuineness and after verifying the claim, the District Legal Services Authority or the State Legal Services Authority, as the case may be, shall, after due inquiry, award compensation within 2 [two] months in accordance with provisions of the Scheme. In the event such an application is filed before the District Legal Services Authority, Clause 8 of the Scheme has provided for preferring an appeal before the State Legal Services Authority. The schedule to the Victim Compensation Scheme, 2012 has provided for different quantums of compensation for different kinds of losses or injuries. By a notification dated 01.02.2019, there have been amendments in the Schedule to the Victim Compensation Scheme, 2012.

8. In view of the above, I am of the considered view that the petitioner shall submit an application before the jurisdictional District Legal Services Authority, Bongaigaon for her claim under the Victim Compensation Scheme, as amended, and on receipt of such application, the jurisdictional District Legal Services Authority, Bongaigaon shall examine the claim and shall dispose of the same in terms of the provisions contained in Clause 5 of the Victim Compensation Scheme, as amended. Accordingly, this writ petition is disposed of providing Page No. 7/7

that the petitioner shall submit an application before the Secretary, District Legal Services Authority, Bongaigaon claiming compensation as a victim under the Victim Compensation Scheme, 2012, as amended, within a period of 2 [two] weeks. On receipt of such application, the Secretary, District Legal Services Authority, Bongaigaon shall consider the same in terms of the Victim Compensation Scheme, 2012, as amended, and decide the same within a period of 2 [two] months from the date of receipt of such an application. In the event the petitioner is aggrieved by any order passed by District Legal Services Authority, Bongaigaon, the petitioner is at liberty to prefer an appeal before the State Legal Services Authority within the stipulated time.

9. With the observations made and directions given above, the writ petition is disposed of.

JUDGE

Comparing Assistant