Kerala State Legal Services ... vs State Of Kerala
2023 Latest Caselaw 8160 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
         THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
  TUESDAY, THE 1ST DAY OF AUGUST 2023 / 10TH SRAVANA, 1945
                     OP(CRL.) NO. 710 OF 2022
   AGAINST PROCEEDINGS NO.19/2021/SUO MOTU/COMPENSATION/SC 848/2016 &
 PROCEEDINGS NO.20/2021/SUO MOTU/COMPENSATION/SC 849/2016 DT 16/11/2021
  OF SPECIAL COURT FOR TRIAL OF OFFENCES RELATING TO ATROCITIES AGAINST
WOMEN AND CHILDREN INCLUDING POCSO CASES (ADDITIONAL SESSIONS COURT-I),
                                ALAPPUZHA

PETITIONERS:

    1     KERALA STATE LEGAL SERVICES AUTHORITY,
          OFFICE OF THE KERALA STATE LEGAL SERVICES
          AUTHORITY, NIYAMA SAHAYA BHAVAN, HIGH COURT
          COMPOUND, ERNAKULAM, KOCHI, REPRESENTED BY ITS
          MEMBER SECRETARY., PIN - 682031
    2     DISTRICT LEGAL SERVICES AUTHORITY, ALAPPUZHA
          OFFICE OF THE DISTRICT LEGAL SERVICES AUTHORITY,
          ALAPPUZHA. REPRESENTED BY ITS SECRETARY., PIN -
          688013
          BY ADVS.ROSHEN.D.ALEXANDER
          TINA ALEX THOMAS,HARIMOHAN,KOCHURANI JAMES
RESPONDENTS/DEFENDANTS:

    1      STATE OF KERALA,
           REPRESENTED BY CHIEF SECRETARY, GOVERNMENT
           SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001
    2      ADDITIONAL CHIEF SECRETARY,
           DEPARTMENT OF HOME, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM., PIN - 695001
           BY ADV ADV P NARAYANAN. ADDL PP
OTHERS PRESENT
           SRI.K.K.DHEERENDRAKRISHNAN, AMICUS CURIAE


     THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON
24.01.2023, THE COURT ON 1.8.2023 DELIVERED THE FOLLOWING:
 OP(Crl) No.710/2022

                                 -:2:-

                                                          "C.R."

                          J U D G M E N T

Dated this the 1st day of August, 2023

A question of seminal importance related to the entitlement

of compensation by the 'sexual harassment victims' under the

Kerala Victim Compensation Scheme, 2017, as amended in 2021,

falls for consideration in this original petition.

2. The Special Court for Trial of Offences Relating to

Atrocities Against Women and Children Including POCSO Cases

(Additional Sessions Court-I), Alappuzha (for short, the court

below) passed two orders of similar nature (Exts.P7 and P8)

directing the District Legal Services Authority, Alappuzha to pay

interim compensation to the victims involved in two cases (SC

Nos.848/2016 and 849/2016) pending before it. The offence

involved in both cases is under Section 11, read with Section 12

of the Protection of Children from Sexual Offences Act, 2012 (for

short, the POCSO Act), apart from the offences under the Indian

Penal Code (for short, the IPC). Section 11 of the POCSO Act deals

with the offence of sexual harassment, while Section 12 provides OP(Crl) No.710/2022

for its punishment. The court below, in both cases, granted

interim compensation of `50,000/- to each victim invoking section

357A of Cr. P.C, Section 33(8) of the POCSO Act and Rule 9(1) of

Protection of Children from Sexual Offences Rules, 2020 (for

short, the POCSO Rules). The petitioners, the Kerala Legal

Services Authority and the District Legal Services Authority,

Alappuzha, the statutory authorities entrusted with the power to

give compensation to the victims as per the Victim Compensation

Scheme under section 357A of Cr. P.C as well as under section

33(8) of the POCSO Act, challenges Exts.P7 and P8 orders on the

ground that since the offence 'sexual harassment' is not included

as an injury in the Schedule of the Kerala Victim Compensation

Scheme, 2017, the victims are not eligible for compensation.

3. Taking note of the critical question of law involved in

the case, this court appointed Sri.K.K.Dheerendrakrishnan as

Amicus Curiae to assist the court.

4. I have heard Sri. Roshan D. Alexander, the learned

counsel for the petitioners, Sri. P. Narayanan, the learned

Additional Public Prosecutor as well the learned Amicus Curiae.

5. The learned counsel for the petitioners Sri. Roshan D. OP(Crl) No.710/2022

Alexander submitted that since the offence 'sexual harassment'

as defined under Section 2(j) read with 11 of the POCSO Act is not

included as an injury in the Schedule of the Kerala Victim

Compensation Scheme, 2017, the victim of sexual harassment

cannot claim compensation invoking section 357A of Cr.P.C,

Section 33(8) of the POCSO Act, Rule 9(1) of POCSO Rules, 2020

and the provisions of the Kerala Victim Compensation Scheme,

2017, as amended in 2021. On the other hand, the learned

Amicus Curiae Sri.K.K.Dheerendrakrishnan submitted that the

Victim Compensation Scheme is a beneficial scheme for the

victim and, hence, the term 'sexual assault' in the Schedule

requires a liberal construction to include within it 'sexual

harassment' as well. Inviting my attention to the definition of the

terms 'injury' and 'sexual assault victims' in Clauses (d) and (g),

respectively, in Chapter II of the Amended Scheme, the learned

Amicus Curiae submitted that the victim in both the cases

qualifies for compensation.

6. Section 357A, a facet of victimology, was inserted by

the Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of

2009), on the recommendation of the Law Commission, to oblige OP(Crl) No.710/2022

the State Government to prepare, in coordination with the Central

Government, a scheme called Victim Compensation Scheme for

the purpose of providing compensation to the victim or his/her

dependent who had suffered loss or injury because of any crime

and who requires rehabilitation. It is a laudable legislative effort

by the State to apply criminal jurisprudence horizontally. Prior to

Amendment Act 5 of 2009, there was no comprehensive

legislation or a well-designed statutory scheme in India that

allowed a victim to seek compensation from either the

perpetrator or the State. The criminal law in the country provided

for compensation to victims and their dependents only in a

limited manner under section 357 of Cr.P.C. With the observations

of the Apex Court relating to compensatory justice in criminal law

in Hari Singh v. Sukhbir Singh and Others [(1988) 4 SCC 551], it

was felt that the principles of compensation to crime victims need

to be reviewed and expanded to cover all cases. It was also felt

that the compensation should not be limited only to fines or

penalties, if realised, but the State should accept the principle of

providing assistance to victims out of its funds, even in case of

acquittals or where the offender is not traceable or identifiable. It OP(Crl) No.710/2022

was in this backdrop, and after noticing that the existing

provisions for compensation to crime victims had their own

weaknesses, that the Law Commission of India, in its 154 th report,

recommended incorporating a provision like section 357A to the

Cr.P.C. While recommending the inclusion of such a scheme for

victim compensation, the Commission reported that the said

scheme is justified from the State funds on the principle that the

State has a humanitarian responsibility to assist crime victims

and that the assistance is provided because of the social

conscience of its citizens and as a symbolic act of compassion. By

incorporating Section 357A, the legislature gave statutory

acknowledgement to the constitutional duty of the State to

compensate and rehabilitate victims of crime or their dependants

in addition to compensation payable by a convict under S.357,

Cr.P.C. and enjoining upon the State the duty to formulate and

fund appropriate Victim Compensation Schemes. It recognises

compensation as one of the methods of protection of victims as

observed by the Apex Court in Suresh and Another v. State of

Haryana [(2015) 2 SCC 227]. While compensation awarded under

S.357, Cr.P.C. is based on principles of tortious liability in private OP(Crl) No.710/2022

law and is dependent on the economic capabilities of the

accused, the scope and ambit of compensation awarded to the

victims under a scheme formulated under S.357A of Cr.P.C. is

founded on the constitutional duty to provide just compensation

to victims of crime for loss of life, limb and/or properties in the

public law domain. Sub Section (1) of Section 357A makes it

mandatory for State Government to frame a Scheme in

coordination with Central Government for providing funds for

compensation to victims or his/her dependants. Whereas Sub

Section (2) casts a duty on District Legal Service Authority or the

State Legal Service Authority, as the case may be, to decide the

quantum of compensation to be awarded to the victim under

the Scheme referred to in subsection (1). For reference, Section

357A of Cr.P.C. is extracted below:

"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 OP(Crl) No.710/2022

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." When the POCSO Act was enacted in the year 2012 with the

primary objective of protecting children from various kinds of

sexual abuses and offences, a specific provision was incorporated

therein empowering the Special Courts to direct payment of

compensation, in addition to punishment, for physical or mental OP(Crl) No.710/2022

trauma caused to the child victim, or for immediate

rehabilitation. The procedure and powers of the Special Court

under the POCSO Act for payment of compensation are

enumerated under Section 33(8) of the POCSO Act, which reads

as follows:

"S.33: Procedure and powers of Special Court xxxx (8) In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child."

7. As per Section 2(g) of the POCSO Act, 'prescribed'

means prescribed by Rules made under the POCSO Act. Section

45 of the POCSO Act enumerates the power to make Rules by the

Central Government. This power includes, under Section 45(2)(c),

the power to make Rules for payment of compensation under

Section 33(8). As contemplated under the Act, POCSO Rules

2020 was promulgated in exercise of the power conferred by

Section 45. Rule 9 of the POCSO Rules, 2020 deals with

compensation. For easy reference, Rule 9 is extracted below:

"9. Compensation. --(1) The Special Court may, in appropriate cases, on its own or on an application filed by OP(Crl) No.710/2022

or on behalf of the child, pass an order for interim compensation to meet the needs of the child for relief or rehabilitation at any stage after registration of the First Information Report. Such interim compensation paid to the child shall be adjusted against the final compensation, if any.

(2) The Special Court may, on its own or on an application filed by or on behalf of the victim, recommend the award of compensation where the accused is convicted, or where the case ends in acquittal or discharge, or the accused is not traced or identified, and in the opinion of the Special Court the child has suffered loss or injury as a result of that offence.

(3) Where the Special Court, under sub-section (8) of section 33 of the Act read with sub-sections (2) and (3) of section 357A of the Code of Criminal Procedure, 1973 (2 of 1974) makes a direction for the award of compensation to the victim, it shall take into account all relevant factors relating to the loss or injury caused to the victim, including the following:-

(i) type of abuse, gravity of the offence and the severity of the mental or physical harm or injury suffered by the child;

(ii) the expenditure incurred or likely to be incurred on child's medical treatment for physical or mental health or on both;

(iii) loss of educational opportunity as a consequence of the offence, including absence from school due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason;

(iv) loss of employment as a result of the offence, OP(Crl) No.710/2022

including absence from place of employment due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason;

(v) the relationship of the child to the offender, if any;

(vi) whether the abuse was a single isolated incidence or whether the abuse took place over a period of time;

(vii) whether the child became pregnant as a result of the offence;

(viii) whether the child contracted a sexually transmitted disease (STD) as a result of the offence;

(ix) whether the child contracted human immunodeficiency virus (HIV) as a result of the offence;

(x) any disability suffered by the child as a result of the offence;

(xi) financial condition of the child against whom the offence has been committed so as to determine such child's need for rehabilitation;

(xii) any other factor that the Special Court may consider to be relevant.

(4) The compensation awarded by the Special Court is to be paid by the State Government from the Victims Compensation Fund or other scheme or fund established by it for the purposes of compensating and rehabilitating victims under section 357A of the Code of Criminal Procedure, 1973 or any other law for the time being in force, or, where such fund or scheme does not exist, by the State Government.

(5) The State Government shall pay the compensation ordered by the Special Court within 30 days of receipt of such order.

OP(Crl) No.710/2022

(6) Nothing in these rules shall prevent a child or child's parent or guardian or any other person in whom the child has trust and confidence from submitting an application for seeking relief under any other rules or scheme of the Central Government or State Government."

8. On a reading of Section 33(8) of the POCSO Act and

Rule 9 (1), (2) of the POCSO Rules 2020, it becomes clear that the

Special Court is competent to award either interim compensation

or final compensation or both for meeting the immediate relief

and rehabilitation needs of the child either on its own or an

application filed by or on behalf of the child. The said

compensation shall be payable by the State Government through

Schemes or Funds established for such purpose. The provisions

regarding the compensation under the POCSO Act and Rules are

based on Section 357A of Cr.P.C, with suitable changes, to ensure

immediate and speedy relief to the child.

9. As per Section 357A of Cr.P.C., Kerala Victim

Compensation Scheme was introduced in the State of Kerala in

2014. By virtue of GO(Ms) No.37/2014/Home dated 24/2/2014,

the State Government has promulgated the Scheme. The

Schedule of the said Scheme contemplates 20 different types of

injuries. The 2014 Scheme was later superseded and repealed by OP(Crl) No.710/2022

another Scheme by the name Kerala Victim Compensation

Scheme, 2017, published as GO(MS) No.224/2017/Home dated

5/11/2017. The number of injuries in the Schedule of the said

Scheme was increased from 20 to 22.

10. The 2017 Scheme was further amended by the Kerala

Victim Compensation (Amendment) Scheme, 2021, published as

GO(Ms) No.59/2021/Home dated 20/2/2021. By virtue of the

Amended Scheme, for the first time, Chapter II, with the title

'Compensation Scheme for Women Victims/Survivors of Sexual

Assault/Other Crimes', and Schedule II, with the title 'Applicable

to Women Victim of Crimes' was added. But, unlike Chapter I,

Chapter II is not a gender-neutral one. It applies to women

victims only. By virtue of Clause 12 of the said Scheme, a

separate fund is constituted by the name 'Women Victims

Compensation Fund', which has to be paid to a woman victim or

her dependents. In Chapter II, the term 'offence' under Clause

11(f) has been defined as an offence committed against women

punishable under the IPC or any other law. Explanation to Clause

27 states that "the provisions of this Chapter (Chapter II) do not

apply to minor victims for the offences under the Protection of OP(Crl) No.710/2022

Children from Sexual Offences Act, 2012 (Central Act 32 of

2012)". By this exclusion, minor victims under the POCSO Act are

excluded from the accountability of the provisions of Chapter II.

Thus, the minor victims under POCSO Act can seek compensation

only under Chapter I of the Victim Compensation Scheme, 2017,

as amended in 2021, placing reliance on Schedule I.

11. The offence 'sexual harassment' defined under Section

2(j) r/w Section 11 of the PCOSO Act is not included as an injury

under Schedule I. What is included in Schedule I is only the

offence of 'sexual assault'. According to the petitioners, since

sexual harassment is not included as an injury in the Schedule of

the Kerala Victim Compensation Scheme, the District Legal

Service Authority is not legally liable to comply with Exts.P7 and

P8 orders.

12. Section 357A of Cr.P.C. is a beneficial provision

introduced for the benefit of the victim of a crime. So also, the

Kerala Victim Compensation Scheme framed by the State of

Kerala is a beneficial scheme for the victim. The object and

purpose of Section 357A as well as the Victim Compensation

Scheme, therefore, conceives a scheme of protective measure OP(Crl) No.710/2022

with the object to protect victims of crimes. When the welfare

statute is made with the single focus of the benefit of victims,

such an Act must be treated as remedial to protect the victims.

While interpreting a provision brought in as a remedial measure,

that too, as a means of welfare for the victims of crimes, the

court must always interpret the words in such a manner that the

relief contemplated by the provision is secured and not denied to

the class intended to be benefitted. Hence, Section 357A of

Cr.P.C., as well as the Kerala Victim Compensation Scheme

introduced as per that provision, requires a liberal interpretation

in the victim's favour if any ambiguity prevails.

13. It is true that in Schedules I and II of the Scheme, what

is included is only the offence of sexual assault. To put it

differently, the term 'sexual harassment' is not included as an

injury in either of the Schedules of the Scheme. Chapter I of the

Scheme applies to all the victims/dependents who have suffered

injury because of a crime. It is not confined to sexual assault

victims alone. Chapter II applies to women victims of sexual

assault/other crimes. The term 'offence', as defined in Chapter II,

means an offence committed against women punishable under OP(Crl) No.710/2022

Indian Penal Code or any other law. However, Chapter II expressly

excludes the minor victims of the offence under the POCSO Act.

Hence, the term 'sexual assault' found in either of the Schedules

of the Scheme cannot be taken as a 'sexual assault' as defined

under the POCSO Act. On the other hand, the general meaning of

the term 'sexual assault' has to be taken. Black's Law Dictionary

defines 'sexual assault' as (i) sexual intercourse with another

person who does not consent (ii) offensive sexual contact with

another person, exclusive of rape. According to Webster's

Dictionary, the word 'sexual assault' means the crime of touching

someone in an unwanted sexual way. Thus, the term 'sexual

assault' found in either of the Schedules of the Scheme has to be

construed as any sexual offence against a victim, including

sexual harassment. Hence, the contention of the petitioners that

the offence 'sexual harassment' as defined under Section 2(j) r/w

Section 11 of the PCOSO Act is not included as an injury under

Schedule I of the Kerala Victim Compensation Scheme, 2017,

cannot be sustained.

14. The POCSO Act is a gender-neutral legislation enacted

with the laudable object of protecting children from offences of OP(Crl) No.710/2022

sexual assault, sexual harassment, and pornography. It is

imperative that the law operates in a manner in the best interest

and well-being of the child. The duty of the Special Court is not

only the protection of children from sexual offences and to

convict the accused where the accused is found guilty, but also to

grant compensation in terms of Section 33(8) of the POCSO Act in

addition to the punishment as may be prescribed to the child for

any physical or mental trauma caused to it or for immediate

rehabilitation of such child. Rule 9 of POCSO Rules, 2020 expands

upon this provision and prescribes how, when, and based on what

factors compensation can be directed by the Special Courts. The

inclusion of such provisions within a penal statute is because the

POCSO Act is intended as a self-contained comprehensive

legislation for the protection of children from sexual offences,

with emphasis on the best interest and well-being of the child at

every stage of the criminal process, and to ensure the healthy

physical, emotional, intellectual, and social development of the

child. From a reading of Rule 9 (1), (2) of the POCSO Rules, 2020

with Section 33(8) of the POCSO Act, it becomes clear that the

Special Court is competent to award either interim compensation OP(Crl) No.710/2022

or final compensation or both for meeting the immediate relief

and rehabilitation needs of the child. In view of the express

provisions of Section 33(8) of the POCSO Act and Rule 9 of the

POCSO Rules, the duty to award compensation in appropriate

cases has been conferred on the Special Court, and therefore, it

is incumbent on the Special Court to pass necessary orders for

compensation/interim compensation in appropriate cases

irrespective of the nature of the offences committed against the

child, be it sexual assault, penetrative sexual assault, aggravated

sexual assault, aggravated penetrative sexual assault, sexual

harassment or using child for pornographic purpose. The duty of

the District Legal Services Authority is to ensure payment of

compensation in terms of Rule 10 and to disburse it. Rule 9(4) of

the POCSO Rules states that the compensation awarded should

be paid from the Victim Compensation Fund or any other

Government Scheme or fund established by it for compensating

and rehabilitating victims under Section 357A. When Section

357A of Cr.P.C, Section 33(8) of the POCSO Act or Rule 9 of the

POCSO Rules does not contemplate that 'sexual assault victims'

alone are eligible for compensation, a Scheme formulated in the OP(Crl) No.710/2022

exercise of the power conferred by such statutory provisions

cannot impose a restriction that a particular class of victims alone

are entitled to victim compensation. A beneficial

legislation/scheme cannot distinguish between victims of crimes.

A conjoint reading of Section 33(8) of the POCSO Act, along with

Rule 9 of the POCSO Rules, make it amply clear that the power of

the Special Court to award interim/final compensation is not

restricted to the terms of the Victim Compensation Fund

promulgated by the State but empowers the Court to award such

reasonable and just amount as may be determined by it in the

facts of the case in the light of the parameters laid down in Rule

9(3) of the aforesaid Rules to provide support to a child victim.

Thus, it is not open for the State Legal Services Authority or

District Legal Services Authority to contend that since the offence

'sexual harassment' is not included as an injury in the Schedule

of the Victim Compensation Scheme, 2017, the victims are not

eligible for compensation.

15. As per Clause (g), Chapter II of the Amended Scheme,

'sexual assault victims' means a female who has suffered mental

or physical injury or both as a result of a sexual offence, including OP(Crl) No.710/2022

Sections 376A, 376B, 376C, 376D, 376E, 354A, 354B, 354C, 354D

and Section 509 of IPC. In the cases involved in Exts.P7 and P8

proceedings, the prosecution was, among other provisions, under

Sections 354A and 509 of IPC, respectively. Those offences are

covered in clause (g), Chapter II of the Amended Scheme. The

'injury' sustained by the victim in both cases falls within the

definition (d) in Chapter II of the said Scheme. For all these

reasons, I hold that the victims in both cases are eligible for

compensation which was rightly awarded by the court below.

16. The Apex Court in Nipun Saxena and Another v. Union

of India and Others (2017 SCC OnLine SC 1776), while making

severe observations with respect to the implementation of Victim

Compensation Schemes by different State Governments, directed

the National Legal Service Authority (NALSA) to prepare model

rules for victim compensation for sexual offences and acid

attacks. Pursuant to the said direction, though a Chapter was

inserted in the Central Victim Compensation Scheme, the same

excluded victim compensation under the POCSO Act since the Act

and Rules envisage its own unique procedure for compensating

victims of sexual abuse. Recognising the absence of victim OP(Crl) No.710/2022

compensation scheme with regard to the victims of sexual abuse

under the provisions of the POCSO Act, the Apex Court in Nipun

Saxena and Another v. Union of India and Others [(2019) 13 SCC

715] by order dated 5/9/2018 directed that till a compensation

scheme specifically for child victims in POCSO cases is framed,

the NALSA compensation scheme shall act as a guideline to

special Courts to award compensation to child victims of sexual

abuse. In Abhishek v. State of Kerala (2020 (5) KLT 276), after

finding that implementation of the provisions of the POCSO Act

needs to be improved radically, this Court in the exercise of its

power under Articles 226 and 227 of the Constitution of India and

with a view to protect the children involved in the cases from the

risk of secondary victimisation and to make the justice delivery

under the statute effective and meaningful had issued 26 general

directions. Among the directions issued, direction No.24 reads

thus:

"24. The State Government shall take necessary steps forthwith to enable the Kerala State Legal Services Authority to draw and disburse the compensation payable to the victims in cases arising under the POCSO Act, in terms of the provisions of the Kerala Victim Compensation Scheme, 2017 by considering the requests OP(Crl) No.710/2022

made by the Legal Services Authority in this regard, or by providing the advance amount to them, and shall ensure that no victim is made to wait for the compensation ordered to be paid by the Special Court, especially for meeting an urgent need."

Despite the directions of the Apex Court in Nipun Saxena (supra)

and of this court in Abhishek (supra), so far, no compensation

scheme specifically for child victims in POCSO cases has been

framed in the State of Kerala. It is pertinent to note that the 2017

Scheme was amended by the Kerala Victim Compensation

(Amendment) Scheme, 2021, after the above directions of the

Apex Court and this court. By virtue of the Amended Scheme

Chapter II, with the title 'Compensation Scheme for Women

Victims/Survivors of Sexual Assault/other Crimes', and Schedule

II, with the title 'Applicable to Women Victim of Crimes', was

added. But, going by the Explanation to Clause 27 of the

Amended Scheme, Chapter II and Schedule II are not applicable

to the victims of POCSO offences. It only applies to women

victims of other crimes except under the POCSO Act. To make it

worse, by virtue of the Amendment in Sl. No.12 of Schedule I,

women victims of sexual assault were excluded from claiming

compensation. Further, sexual offences under the POCSO Act, OP(Crl) No.710/2022

such as penetrative sexual assault, aggravated sexual assault,

aggravated penetrative sexual assault, sexual harassment, and

using a child for pornography, are not explicitly covered under

either Schedule. Thus, the existing Scheme, even after the

amendment in 2021, is inadequate for compensating victims of

sexual abuse under the POCSO Act.

17. For these reasons and in view of guidelines of the Apex

court in Nipun Saxena (supra) and of this court in Abhishek

(supra) as referred to above, it is obligatory on the part of the

State Government to formulate a comprehensive victim

compensation scheme specifically for the victims of sexual

offences under the POCSO Act or to make necessary

amendments in the existing Kerala Victim Compensation Scheme,

2017 (As amended in 2021) incorporating a separate Schedule

applicable to sexual offence victims under the POCSO Act. The

State Government shall take necessary steps in this regard

forthwith. Till the framing of such a comprehensive scheme or

making amendments to the existing scheme as stated above, the

NALSA Scheme, 2018 shall act as a guideline to the Special Court

to award compensation to child victims of sexual offences under OP(Crl) No.710/2022

the POCSO Act as directed in Nipun Saxena (supra).

18. The original petition is dismissed with the above

directions. The Registry is directed to send a copy of this

judgment to the Chief Secretary, Government of Kerala.

I record the appreciation for the able and valuable

assistance rendered by the learned Amicus Curiae

Sri.K.K.Dheerendrakrishnan as well as the learned counsel for the

petitioners Sri. Roshan D. Alexander.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE Rp OP(Crl) No.710/2022

APPENDIX OF OP(CRL.) 710/2022

PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE RECORD OF PROCEEDINGS DTD.

12.10.2017 IN W.P.(C) NO.565/2012 ON THE FILES OF HON'BLE SUPREME COURT OF INDIA.

Exhibit P2 TRUE COPY OF THE RECORD OF PROCEEDINGS DTD.

05.09.2018 IN W.P.(C) NO.565/2012 ON THE FILES OF THE HON'BLE SUPREME COURT OF INDIA.

Exhibit P3 TRUE COPY OF HIGH COURT O.M. NO. D1-

7/24630/2021 DTD. 24.08.2021.

Exhibit P4 TRUE COPY OF G.O.(MS) NO. 37/2014/HOME DTD.

24.02.2014 AND PUBLISHED IN KERALA GAZETTE EXTRAORDINARY BEARING NO.731, VOL.3 DTD.

25.02.2014.

Exhibit P5 TRUE COPY OF G.O.(MS) NO. 224/2017/HOME DTD.

               05.11.2017   PUBLISHED    IN    KERALA   GAZETTE
               EXTRAORDINARY    NO.    2554,      VOL.6    DTD.
               20.11.2017.
Exhibit P6     TRUE COPY OF THE KERALA VICTIM COMPENSATION

(AMENDMENT) SCHEME, 2021 PUBLISHED AS G.O.

(MS) NO. 59/2021/HOME DTD. 20.02.2021 IN KERALA GAZETTE EXTRAORDINARY NO. 1001, VOL. 19 DTD. 26.02.2021.

Exhibit P7 TRUE COPY OF THE PROCEEDINGS NO.19/2021/SUO MOTU/COMPENSATION/SC 848/2016 DTD.

16.11.2021 ISSUED BY THE SPECIAL COURT FOR TRIAL OF OFFENCES RELATING TO ATROCITIES AGAINST WOMEN AND CHILDREN INCLUDING POCSO CASES (ADDITIONAL SESSIONS COURT - I), ALAPPUZHA.

Exhibit P8 TRUE COPY OF THE PROCEEDINGS NO.20/2021/SUO MOTU/COMPENSATION/ SC 849/2016 DTD.

16.11.2021 ISSUED BY THE SPECIAL COURT FOR TRIAL OF OFFENCES RELATING TO ATROCITIES AGAINST WOMEN AND CHILDREN INCLUDING POCSO CASES (ADDITIONAL SESSIONS COURT - I), ALAPPUZHA.