Compensation to the Victim

In one line

Section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023 lets the sentencing court order the offender to pay the victim, and sub-section (3) works even where no fine is imposed at all.

In the wording a student can write in an exam: compensation is money the criminal court orders the offender to pay the person injured by the offence. Section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023 provides for it in two ways: out of a fine that has been imposed, under sub-section (1), and as a free standing order where no fine forms part of the sentence, under sub-section (3). It is distinct from the State funded compensation under section 396.

Why the criminal court pays the victim at all

The traditional model of criminal justice has two parties, the State and the accused, and the victim appears only as a witness. Compensation is the correction of that. The victim has suffered the loss, the offender has caused it, and requiring a separate civil suit to move the money between them is slow, expensive and often futile.

That reasoning connects directly to the reparative account of punishment in [Compensation and the Restorative Approach], and to the classical Hindu position, where the king's danda and the wrongdoer's payment to the injured party sat side by side, discussed in [The Classical Hindu Approach: Danda].

The two routes in section 395

The distinction between sub-sections (1) and (3) is the single most examinable thing in this chapter.

Sub-section (1): out of the fine. Where the court imposes a sentence of fine, or a sentence including a sentence of death of which fine forms a part, it may order the whole or any part of the fine recovered to be applied to four purposes:

• (a) defraying the expenses properly incurred in the prosecution;
• (b) paying compensation for 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) where the conviction is for causing death, or abetting it, paying compensation to those entitled to recover damages under the Fatal Accidents Act 1855;
• (d) where the conviction includes theft, criminal misappropriation, criminal breach of trust, cheating or dishonest receipt or retention of stolen property, compensating a bona fide purchaser of that property for his loss if the property is restored to the person entitled to it.

Note the word recovered. Under sub-section (1) the money must actually have come in. If the fine is not paid, there is nothing to apply.

Sub-section (3): where no fine is imposed. Where the court imposes a sentence of which fine does not form a part, it may order the accused to pay, by way of compensation, such amount as may be specified, to the person who has suffered any loss or injury by reason of the act.