Compensation to Victims, and to the Wrongly Accused

Sub-section (2), the appeal. Where the fine is imposed in a case subject to appeal, no payment shall be made before the appeal period has elapsed, or, if an appeal is presented, before its decision.

Sub-section (3), where there is no fine. When a Court imposes a sentence of which fine does not form a part, it may, when passing judgment, order the accused to pay such compensation as may be specified to the person who has suffered any loss or injury by reason of the act for which he was sentenced.

Sub-section (4). Such an order may also be made by an Appellate Court, or by the High Court or Court of Session in revision.

Sub-section (5), no double recovery. 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 under this section.

Section 396: the victim compensation scheme

Sub-section (1). Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.

Sub-section (2). Whenever a recommendation is made by the Court, the District Legal Service Authority or the State Legal Service Authority shall decide the quantum.

Sub-section (3), when the Court recommends. If the trial Court, at the conclusion of the trial, is satisfied that the compensation under section 395 is not adequate for rehabilitation, or where the case ends in acquittal or discharge and the victim has to be rehabilitated, it may make a recommendation for compensation.

Sub-section (4), no offender at all. Where the offender is not traced or identified but the victim is identified, and no trial takes place, the victim or his dependents may apply to the State or District Legal Services Authority.

Sub-section (5), the time limit. On a recommendation or an application, the Authority shall, after due enquiry, award adequate compensation, completing the enquiry within two months.

Sub-section (6), interim relief. The Authority may, to alleviate the suffering of the victim, order immediate first-aid facility or medical benefits free of cost, on the certificate of a police officer not below the rank of the officer in charge of a police station, or a Magistrate of the area, or any other interim relief it thinks fit.

Sub-section (7). Compensation payable by the State Government under this section is in addition to the fine payable to the victim under sections 65, 70 and 124(1) of the Bharatiya Nyaya Sanhita, 2023.

Sub-sections (3) and (4) are the whole point of the section and the two lines an examiner looks for. Compensation under this scheme does not depend on a conviction, and does not even depend on there being an accused.

Sections 397 and 398: treatment, and witness protection

Section 397. All hospitals, public or private, whether run by the Central Government, a State Government, local bodies or any other person, shall immediately provide first-aid or medical treatment free of cost to victims of an offence under sections 64, 65, 66, 67, 68, 70, 71 or 124(1) of the Bharatiya Nyaya Sanhita, 2023, or under sections 4, 6, 8 or 10 of the Protection of Children from Sexual Offences Act, 2012, and shall immediately inform the police of the incident.

Section 398. Every State Government shall prepare and notify a Witness Protection Scheme for the State with a view to ensure protection of the witnesses.

Section 398 is one sentence long and it is new. Its significance is that witness protection, which was previously a matter of judicial direction, is now a statutory duty of every State Government.

Sections 399 and 400: the other side of the ledger

Section 399, groundless arrest.

Sub-section (1). Whenever a person causes a police officer to arrest another, and it appears to the Magistrate hearing the case that there was no sufficient ground for causing the arrest, the Magistrate may award compensation not exceeding one thousand rupees, payable by the person causing the arrest to the person arrested, for his loss of time and expenses.

Sub-section (2). Where more than one person is arrested, the Magistrate may award to each of them such compensation, not exceeding one thousand rupees.

Sub-section (3), recovery. The compensation may be recovered as if it were a fine, and if it cannot be so recovered, the person liable shall be sentenced to simple imprisonment for a term not exceeding thirty days, unless the sum is sooner paid.

Section 400, costs in non-cognizable cases.

Sub-section (1). Whenever a complaint of a non-cognizable offence is made to a Court and it convicts, it may, in addition to the penalty, order the accused to pay the complainant, in whole or in part, the cost incurred by him in the prosecution, with simple imprisonment not exceeding thirty days in default; and those costs may include process fees, witness expenses and advocate's fees which the Court considers reasonable.

Sub-section (2). Such an order may also be made by an Appellate Court, or the High Court or Court of Session in revision.

Section 401: probation of good conduct, and admonition

Sub-section (1), who is eligible. Where:

• a person not under twenty-one years of age is convicted of an offence punishable with fine only, or with imprisonment for seven years or less; or
• a person under twenty-one years of age, or any woman, is convicted of an offence not punishable with death or imprisonment for life,

and no previous conviction is proved, and it appears to the Court, regard being had to the age, character or antecedents of the offender and to the circumstances in which the offence was committed, that it is expedient that he should be released on probation of good conduct, the Court may, instead of sentencing him at once, direct that he be released on his entering into a bond or bail bond to appear and receive sentence when called upon during such period, not exceeding three years, as the Court directs, and in the meantime to keep the peace and be of good behaviour.

Proviso: where a first offender is convicted by a Magistrate of the second class not specially empowered, and that Magistrate thinks the power should be exercised, he shall record his opinion and submit the proceedings to a Magistrate of the first class, forwarding the accused or taking bail for his appearance.

Sub-section (2). The first class Magistrate to whom the proceedings are submitted may pass such sentence or make such order as he might have passed had the case originally been heard by him, and may make or direct further inquiry or additional evidence.

Sub-section (3), admonition. Where a person is convicted of theft, theft in a building, dishonest misappropriation, cheating, or any offence under the Bharatiya Nyaya Sanhita punishable with not more than two years' imprisonment, or any offence punishable with fine only, and no previous conviction is proved, the Court may, having regard to his age, character, antecedents or physical or mental condition and to the trivial nature of the offence or any extenuating circumstances, instead of sentencing him, release him after due admonition.

Sub-section (4). Such an order may also be made by an Appellate Court, or the High Court or Court of Session in revision.

Sub-section (5). Where such an order has been made, the High Court or Court of Session may, on appeal where there is a right of appeal, or in revision, set it aside and pass sentence according to law. Proviso: it shall not inflict a greater punishment than the convicting Court might have inflicted.

Sub-section (6). Sections 140, 143 and 414 apply, so far as may be, to sureties offered under this section.

Sub-section (7). Before directing release under sub-section (1), the Court shall be satisfied that the offender or his surety has a fixed place of abode or regular occupation in the place for which the Court acts, or in which the offender is likely to live during the period named.

Sub-section (8). If the convicting Court, or a Court which could have dealt with the original offence, is satisfied that he has failed to observe any condition of his recognizance, it may issue a warrant for his apprehension.

Sub-section (9). On apprehension he shall be brought forthwith before the Court issuing the warrant, which may remand him in custody until the case is heard, or admit him to bail with a sufficient surety conditioned on his appearing for sentence, and may, after hearing the case, pass sentence.

Sub-section (10). Nothing in the section affects the Probation of Offenders Act, 1958, the Juvenile Justice (Care and Protection of Children) Act, 2015, or any other law for the treatment, training or rehabilitation of youthful offenders.

Remember section 402 from the last chapter: where the Court could have used section 401 or the Probation of Offenders Act or the Juvenile Justice Act and did not, it must record special reasons.

A worked example

Sunita's husband is killed. Two men are tried; one is convicted and fined, the other acquitted.

Compensation from the convict. The Court may, when passing judgment, order the fine applied to pay the persons entitled under the Fatal Accidents Act, 1855 for the loss resulting from the death, section 395(1)(c). If the sentence carried no fine, the Court may still order the accused to pay a specified sum to the person who suffered loss or injury, section 395(3).

When does the money move? If the case is subject to appeal, not before the appeal period elapses, or, if an appeal is filed, not before it is decided, section 395(2).

The amount is not enough for her rehabilitation. At the conclusion of the trial the Court may recommend compensation under the victim compensation scheme, and the District or State Legal Services Authority decides the quantum and must complete the enquiry within two months, sections 396(2), (3) and (5).

The other accused was acquitted, and the family of the second victim needs help. Section 396(3) covers that too: the Court may recommend where the case ends in acquittal or discharge and the victim has to be rehabilitated.

Change it entirely: the killer is never traced. Then the victim or his dependents may apply directly to the State or District Legal Services Authority, section 396(4), and the Authority may order immediate free first aid or medical benefits on the certificate of the station house officer or a Magistrate, or any other interim relief, sub-section (6).

A different case: a girl is brought to a private hospital after a sexual assault. The hospital must treat her immediately and free of cost, and must immediately inform the police, section 397. It makes no difference that it is private, or who runs it.

Witnesses in that case are threatened. The State's Witness Protection Scheme, which every State Government is bound to prepare and notify, is the machinery, section 398.

Now the other side. Ramesh, out of spite, causes the police to arrest his neighbour. The Magistrate finds there was no sufficient ground. He may award the neighbour up to one thousand rupees for loss of time and expenses, section 399(1); if several men were arrested, up to a thousand rupees each, sub-section (2). The money is recovered as a fine, and in default Ramesh may be sentenced to simple imprisonment up to thirty days, sub-section (3).

A complainant prosecutes a non-cognizable offence and wins. The Court may order the convict to pay his costs, including process fees, witness expenses and reasonable advocate's fees, with thirty days' simple imprisonment in default, section 400.

Finally, a nineteen-year-old first offender convicted of an offence carrying three years. The Court may, having regard to his age, character or antecedents and the circumstances, release him on a bond to appear and receive sentence when called upon within a period not exceeding three years, keeping the peace and being of good behaviour, section 401(1); and it must first be satisfied that he or his surety has a fixed abode or regular occupation, sub-section (7).

He breaks the conditions. The Court issues a warrant, he is brought forthwith, and the Court may remand or bail him and, after hearing, pass sentence, sub-sections (8) and (9).

Distinctions

What this does NOT mean

Section 395 does not turn a criminal court into a civil one. Clause (b) is confined to compensation the Court thinks recoverable in a Civil Court, and sub-section (5) requires a later civil court to take into account what was paid.

Section 396 is not a discretion of the trial Court alone. The Court recommends; the Legal Services Authority decides the quantum and must do so within two months.

It is not conditional on the trial's result. Acquittal, discharge, or no trial at all still leave the route open.

Section 397 is not confined to Government hospitals, and free treatment is not conditional on a police report first: the hospital treats immediately and then informs the police.

Section 399 is not compensation from the State. It is paid by the person who caused the arrest, and is capped at one thousand rupees per person arrested.

And section 401 is not an acquittal. The offender is convicted; what is withheld is the sentence, and it can be passed later if he breaks the bond.

Quick revision

• 395: the Court may apply the fine to prosecution expenses, compensation recoverable in a Civil Court, Fatal Accidents Act claimants, and a bona fide purchaser where the property is restored; where there is no fine, it may order the accused to pay a specified sum; no payment till the appeal period passes or the appeal is decided; available to an Appellate Court or in revision; a later civil court must take it into account.
• 396: every State with the Centre shall prepare a victim compensation scheme; the Legal Services Authority fixes the quantum on the Court's recommendation, including where the compensation under s.395 is inadequate or the case ends in acquittal or discharge; where the offender is untraced and no trial takes place, the victim or dependents apply directly; enquiry within two months; immediate free first aid or medical benefits and other interim relief; in addition to the fine payable under BNS ss.65, 70 and 124(1).
• 397: all hospitals, public or private, to give immediate free first aid or treatment to victims of BNS ss.64 to 68, 70, 71, 124(1) and POCSO ss.4, 6, 8, 10, and to inform the police immediately.
• 398: every State Government shall prepare and notify a Witness Protection Scheme.
• 399: up to one thousand rupees to a person groundlessly arrested, paid by the person who caused the arrest, each where several are arrested; recovered as a fine, default thirty days simple imprisonment.
• 400: in non-cognizable cases, on conviction, the accused may be ordered to pay the complainant's costs, including process fees, witnesses and reasonable advocate's fees, default thirty days simple.
• 401: probation of good conduct on a bond for up to three years for a first offender in the two eligibility classes; admonition for the listed petty offences; fixed abode or occupation required; warrant on breach, then remand or bail and sentence; the Probation of Offenders Act and the Juvenile Justice Act are unaffected.

Test yourself

1. Can a Court order compensation where the sentence carries no fine? Yes. Section 395(3) allows the Court, when passing judgment, to order the accused to pay such compensation as specified to the person who suffered loss or injury by reason of the act.

2. When may the fine be paid over to the victim? Not before the period allowed for presenting an appeal has elapsed, or, if an appeal is presented, not before its decision, section 395(2).

3. Who fixes the amount under the victim compensation scheme? The District Legal Service Authority or the State Legal Service Authority, on the Court's recommendation or on the victim's application, and it must complete the enquiry within two months, section 396.

4. Is compensation under section 396 available if the accused is acquitted? Yes. Section 396(3) covers cases ending in acquittal or discharge where the victim has to be rehabilitated, and section 396(4) covers cases where the offender is never traced and no trial takes place.

5. What duty does section 397 place on a private hospital? To provide first aid or medical treatment immediately and free of cost to victims of the listed offences under the Bharatiya Nyaya Sanhita and POCSO, and to inform the police of the incident immediately.

6. Who pays a person who was arrested on no sufficient ground? The person who caused the police officer to arrest him, up to one thousand rupees for loss of time and expenses, recoverable as a fine, section 399.

7. On what conditions may a first offender be released on probation of good conduct? He must fall within one of the two classes in section 401(1), no previous conviction must be proved, the Court must think release expedient having regard to his age, character or antecedents and the circumstances, and it must be satisfied that he or his surety has a fixed place of abode or regular occupation; he enters a bond for a period not exceeding three years to appear and receive sentence when called upon and meanwhile to keep the peace and be of good behaviour.