(Madan B. Lokur, S. Abdul Nazeer and Deepak Gupta, JJ.)
Nipun Saxena & Anr. ___________________________ Petitioner(s)
v.
Union of India & Ors. __________________________ Respondent(s)
Writ Petition (C) No. 565 of 2012, decided on September 5, 2018
With
W.P.(Crl.) No. 1/2013 W.P.(C) No. 22/2013 W.P.(C) No. 148/2013 SLP(Crl.)…CRLMP No. 16041/2014 W.P.(C) No. 568/2012
The Order of the court was delivered by
Order
1. Subsequent to our order dated 10th August, 2018, the Committee has looked into the suggestions made to the Victim Compensation Scheme and now finally the Guidelines have been placed before us under the heading of NALSA’s Compensation Scheme for Women Victims/Survivors of Sexual Assault/other Crimes-2018.
2. It has been brought to our notice that as far as children are concerned, no Scheme of this nature has been framed with regard to the victims of sexual abuse under the provisions of the Protection of Children from Sexual Offences Act, 2012 (for short “POCSO Act”).
3. Section 33 of the POCSO Act deals with the procedure and powers of the Special Courts. Our attention has been drawn to Section 33(8) of the POCSO Act. This reads as follows:
“(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.”
4. Section 45 of the POCSO Act deals with the rule making power and it refers, inter alia, to the payment of compensation under sub-section (8) of Section 33 of the POCSO Act.
5. Our attention has also been drawn to Rule 7 of the Protection of Children from Sexual Offences Rules, 2012. This Rule reads as follows:
“7. Compensation.- (1) The Special Court may, in appropriate cases, on its own or on an application filed by or on behalf of the child, pass an order for interim compensation to meet the immediate 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, 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 his medical treatment for physical and/or mental health;
(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, 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 his 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 or any other laws 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.
(6) Nothing in these rules shall prevent a child or his 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.”
6. On a reading of the aforesaid Rule, it appears to us that the Special Court may, in appropriate cases, on its own or on an application having been filed, pass an order for interim compensation for the immediate needs of the child. Of course, this Rule is a gender neutral provision.
7. Ms. Pinky Anand, learned Additional Solicitor General informs us that there is a proposal to amend the POCSO Act and that the Rules will be framed after the amendment in the POCSO Act is made.
8. In the interim, therefore, the situation is that there are no Guidelines or Rules that are applicable on the basis of which the Special Court can pass appropriate orders.
9. Keeping this hiatus in mind, we are of the opinion, after hearing learned counsel for the parties as well as learned Additional Solicitor General, that the NALSA’ Compensation Scheme should function as a guideline to the Special Court for the award of compensation to victims of child sexual abuse under Rule 7 until the Rules are finalized by the Central Government.
10. The Special Judge will, of course, take the provisions of the POCSO Act into consideration as well as any circumstances that are special to the victim while passing an appropriate order.
11. We need not emphasise that the legislation is gender neutral and, therefore, the Guidelines will be applicable to all children.
12. The Special Judge will also pass appropriate orders regarding actual physical payment of the compensation or the interim compensation so that it is not misused or mis-utilized and is actually available for the benefit of the child victim. If the Special Judge deems it appropriate, an order of depositing the amount in an interest-bearing account may be passed.
13. A copy of the NALSA’s Compensation Scheme as well as a copy of this order should be sent by the Registry to the Registrar General of every High Court with a direction that the Registrar General will circulate them to all the concerned District Judges for circulation to the Special Judges and the State, District and Taluka Legal Services Committees.
14. A copy of the Scheme and a copy of the order passed by this Court will also be sent by the Registry to all the Judicial Academies for information.
15. We also direct that the publicity should be given to the Scheme as well as the order passed by us on regular basis until the Rules are finalized by the Central Government. Learned Additional Solicitor General assures us that the needful will be done on a regular basis through all forms of media.
16. Needless to say that the Scheme and the Guidelines will be operational from 2nd October, 2018.
17. We acknowledge and appreciate the efforts put in by the Committee and NALSA in framing the Scheme and assisting us in its extension to child victims.
18. After the Scheme and the Guidelines are operational for some time, if necessary, revisions can be made.
Writ Petition(s)(Civil) No(s).565/2012
Nipun Saxena & Anr. _______________________________ Petitioner(s)
v.
Union of India & Ors. ____________________________ Respondent(s)
With
W.P.(Crl.) No. 1/2013 (PIL-W)
W.P.(C) No. 22/2013 (PIL-W)
W.P.(C) No. 148/2013 (PIL-W)
SLP(Crl.)…CRLMP No. 16041/2014 (II-A)
(WITH APPLN.(S) FOR CONDONATION OF DELAY IN REFILING ON IA 16043/2014)
W.P.(C) No. 568/2012 (PIL-W)
W.P.(C) No. 3/2018 (PIL-W)
Date: 05-09-2018 These matters were called on for hearing today.
(Before Madan B. Lokur, S. Abdul Nazeer and Deepak Gupta, JJ.)
Ms. Indira Jaising, Sr. Adv. (A.C.)
Ms. Sangeeta Madan, Adv.
Mr. P.S. Tripathi, AOR
Ms. Vani Vyas, Adv.
Mr. Mukesh Kumar Singh, Adv.
Ms. Aanchal Singh, Adv.
Mr. Ravi Chandra Prakash, Adv.
Mr. Abhishek Tripathi, Adv.
Ms. Ajita Sharma, Adv.
For Petitioner(s) Ms. Ankita Chaudhary, Adv.
Mr. Nipun Saxena, Petitioner-in-person
Mr. Prashant Chaudhary, AOR
Mr. R.P. Gupta, AOR
Mr. E.C. Agrawala, AOR
Ms. Anuja Kapur, Petitioner-in-person
For Respondent(s) Ms. Pinky Anand, ASG
Mr. Ashok Kumar Panda, Sr. Adv.
Mr. Sachin Sharma, Adv.
Ms. Sushma Verma, Adv.
Mr. Raj Bahadur, Adv.
Mrs. Anil Katiyar, Adv.
Mr. S.A. Haseeb, Adv.
Ms. Kiran Bhardwaj, Adv.
Ms. Bhakti Pasrija Sethi, Adv.
Mr. M.P. Gupta, Adv.
Ms. Kirti Dua, Adv.
Mr. B.V. Balaram Das, Adv.
Mr. Ajay Kumar Singh, Adv.
Mr. Shailinder Saini, Adv.
Mr. R.K. Rathor, Adv.
Ms. Rashmi Malhotra, Adv.
Ms. Sunita Sharma, Adv.
Mr. R.R. Rajesh, Adv.
Ms. Saudamini Sharma, Adv.
Mr. S. Wasim A. Qadri, Adv.
Mr. Jubair Ahmad Khan, Adv.
Mr. Zaid Ali, Adv.
Mr. Tamim Qadri, Adv.
Mr. Saeed Qadri, Adv.
Mr. G.S. Makker, Adv.
Mr. Arun Kumar, Adv.
Ms. Aishi Singh, Adv.
NALSA Mr. Alok Agarwal, Member-Secretary
Ms. Anitha Shenoy, Adv
For States of
Assam Mr. Shuvodeep Roy, Adv.
Mr. Sayooj Mohandas, Adv.
Ms. Diksha Rai, Adv.
Mr. Palak Mahajan, Adv.
Andhra Pradesh Mr. Guntur Prabhakar, Adv.
Ms. Prerna Singh, Adv.
Arunachal Pradesh Mr. Anil Shrivastav, Adv.
Mr. Rituraj Biswas, Adv.
Bihar Mr. Gopal Singh, AOR
Mr. Manish Kumar, Adv.
Chhattisgarh Mr. Jugal Kishore Gilda, Adv. Gen.
Mr. A.P. Mayee, Adv.
Mr. Chirag Jain, Adv.
Mr. Atul Jha, Adv.
Mr. Sandeep Jha, Adv.
Mr. Dharmendra Kumar Sinha, Adv.
Goa Mr. A.N.S. Nadkarni, ASG
Mr. Merusagar Samantray, Adv.
Ms. Ruchira Gupta, Adv.
Mr. Santosh Rebello, Adv.
Mr. Anurag Sharma, Adv.
Mr. Shishir Deshpande, Adv.
Ms. Lhingneivah, Adv.
Ms. Snehapravu Tendulkar, Adv.
Gujarat Ms. Hemantika Wahi, AOR
Ms. Jesal Wahi, Adv.
Ms. Mamta Singh, Adv.
Ms. Shodhika Sharma, Adv.
Haryana Mr. Arun Bhardwaj, AAG
Mr. Ajay Bansal, AAG
Mr. Gaurav Yadava, Adv.
Ms. Veena Bansal, Adv.
Mr. Ashish Pandey, Adv.
Mr. Prateep Rai, Adv.
Mr. Shekhar Raj Sharma, Adv.
Mr. Sanjay Kumar Visen, Adv.
H.P. Mr. Vikas Mahajan, AAG
Mr. Vinod Sharma, Adv.
Jharkhand Mr. Tapesh Kumar Singh, Adv.
Mr. Mohd. Waquas, Adv.
Mr. Aditya Pratap Singh, Adv.
J&K Mr. M. Shoeb Alam, Adv.
Ms. Fauzia Shakil, Adv.
Mr. Ujjwal Singh, Adv.
Mr. Mojahid Karim Khan, Adv.
Karnataka Mr. V.N. Raghupathy, Adv.
Mr. Parikshit P. Angadi, Adv.
Md. Apzal Ansari, Adv.
Kerala Mr. C.K. Sasi, Adv.
Ms. Nayantara Roy, Adv.
M.P. Mr. Sunny Choudhary, Adv.
Mr. Abhilash Attri, Adv.
Mr. Abhishek Attri, Adv.
Maharashtra Ms. Deepa M. Kulkarni, Adv.
Mr. Nishant Ramakantrao Katneshwarkar, AOR Manipur
Mr. Leishangthem Roshmani, Adv.
Ms. Maibam Babina, Adv. Meghalaya
Mr. Ranjan Mukherjee, Adv.
Mr. K.V. Kharlyngdoh, Adv.
Mr. Daniel Stone Lyngdoh, Adv. Mizoram
Mr. K.N. Madhusoodhanan, Adv.
Mr. T.G. Narayanan Nair, AOR
Nagaland Ms. K. Enatoli Sema, AOR
Mr. Edward Belho, Adv.
Mr. Amit Kumar Singh, Adv.
Mr. Z.H. Isaac Haiding, Adv.
Punjab Mr. Karan Bharihoke, Adv.
Mr. Kaushal Narayan Misha, Adv.
Ms. Nav Kiran Bolay, Adv. Rajasthan
Mr. Nalin Kohli, AAG
Mr. Ankit Roy, Adv.
Mr. Milind Kumar, Adv. Sikkim
Ms. Aruna Mathur, Adv.
Mr. Avneesh Arputham, Adv.
Ms. Anuradha Arputham, Adv.
Ms. Geetanjali, Adv. for M/s Arputham Aruna & Co.
Tamil Nadu Mr. M. Yogesh Kanna, Adv.
Mr. S. Partha Sarathi, Adv. Telangana
Mr. S. Udaya Kumar Sagar, AOR
Mr. Mrityunjai Singh, Adv. Tripura
Mr. Shuvodeep Roy, Adv.
Mr. Rituraj Biswas, Adv. Uttar Pradesh
Ms. Aishwarya Bhati, AAG
Mr. Aviral Saxena, Adv.
Mr. Pradeep Misra, Adv. Uttarakhand
Ms. Rachana Srivastva, Adv.
Ms. Monika, Adv.
West Bengal Mr. Suhaan Mukerji, Adv.
Ms. Astha Sharma, Adv.
Mr. Harsh Hiroo Gursahani, Adv.
Mr. Abhishek Manchanda, Adv.
Ms. Kajal Dalal, Adv.
For PLR Chambers & Co.
A&N Islands Mr. K.V. Jagdishvaran, Adv.
Mrs. G. Indira, AOR
Chandigarh Ms. Kamakshi S. Mehlwal, Adv.
Mr. Sanveer Mehlwal, Adv.
Ms. Geetanjali Mehlwal, Adv. Dadar & Nagar
Mr. A.K. Panda, Sr. Adv. Haveli
Ms. Sushma Verma, Adv.
Mr. R.R. Rajesh, Adv.
Mr. Sachin Sharma, Adv.
Mr. Amit Pratap Singh, Adv. Mr. Arun Kumar, Adv.
NCT of Delhi Mr. Chirag M. Shroff, AOR Puducherry
Mr. V.G. Pragasam, Adv.
Mr. Prabu Ramasubramanian, Adv.
Mr. S. Manuraj, Adv.
Mr. Colin Gonsalves, Sr. Adv.
Ms. Aditi Gupta, Adv.
Mr. Satya Mitra, Adv.
Ms. Bina Goyal, Adv.
Mr. Hitesh Kumar Sharma, Adv.
Ms. Madhumita Gupta, Adv.
Mr. Ardhendumauli Kumar Prasad, Adv.
Mr. Vaibhav Shrivastava, Adv.
Mr. Namit Saxena, Adv.
Mr. Shibashish Misra, Adv.
Mr. Chandan Kumar Mandal, Adv.
Mr. Abhishek Atrey, Adv.
UPON hearing the counsel the Court made the following
ORDER
19. In terms of the signed reportable order, the Scheme and the Guidelines will be operational from 2nd October, 2018.
20. After the Scheme and the Guidelines are operational for some time, if necessary, revisions can be made.
IA Nos. 103062 & 103063/2018
21. These applications will remain pending and will be taken up after a couple of months.
Re: submissions made by learned amicus curiae regarding interpretation of Section 23 of the POCSO Act, Section 3 of the Contempt of Courts Act and Section 228A of IPC.
22. Arguments heard in part.
23. List the matter as part-heard matter on 11th September, 2018.
W.P.(C) No. 3/2018
24. Detag.
25. List the matter after four weeks.
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