2020 (11) TMI 1068 - HC - Indian Laws

Territorial jurisdiction - Transfer of the case - the ld. Addl. Sessions Judge ceased to have jurisdiction in respect of Karkardooma Courts matters upon being transferred with immediate effect - validity of Note 2 appended to the transfer order dated 13th March, 2020 which empowered the judicial officers to pronounce the judgment/order in the reserved matters. HELD THAT - Article 227 of the Constitution empowers the High Court with the superintendence over all the Courts and Tribunals throughout its territory. The power of superintendence under Article 227 includes the administrative as well as judicial superintendence i.e. the High Court can transfer a case by exercising its administrative power of superintendence or its judicial power of superintendence. Articles 227 and 235 of the Constitution empowers the High Court to have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction and control over subordinate Courts including matters with respect to the posting and promotion of Judicial Officers. Code of Criminal Procedure vests plenary powers in the High Court relating to the superintendence over the subordinate Courts including the appointment, posting, promotion and transfer of the judicial officers. Section 33 provides that the Judicial Officers shall have the powers conferred upon them by High Court and High Court is empowered to withdraw the powers conferred on any officer - Section 407 empowers the High Court to transfer the cases on judicial side and Section 483 empowers the High Court to transfer the cases on the administrative side. Section 482 vests inherent power in the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice. There are two types of jurisdictions of a Criminal Court, namely, (i) the jurisdiction with respect to the power of the Court to try particular kinds of offences, and (ii) the territorial jurisdiction. While the former goes to the root of the matter and any transgression makes the entire trial void, the latter is not of a peremptory character and is curable under Section 462 CrPC. Territorial jurisdiction is a matter of convenience, keeping in mind the administrative point of view with respect to the work of a particular Court, the convenience of the accused who will have to meet the charge leveled against him and the convenience of the witnesses who have to appear before the Court - The Code of Criminal Procedure does not impose a bar on pronouncement of orders/judgments by the Judge who recorded the entire evidence and heard the matter or who heard the matter finally after evidence was recorded by someone else, merely because the said Judge has been transferred to another Court. In the present case, ld. Addl. Sessions Judge concluded the hearing of the oral arguments on 06th March, 2020 when he reserved the judgment. The Ld. Addl. Sessions Judge pronounced the judgment in open Court on 09th July, 2020. The pronouncement of the judgment by the ld. Addl. Sessions Judge is in terms of Section 353 CrPC. The delay of over four months in delivering the judgment by the ld. Addl. Sessions Judge is a mere irregularity since it has not caused any prejudice to the accused and is, therefore, curable. Victims are unfortunately the forgotten people in the criminal justice delivery system. The criminal justice system tends to think more of the rights of the offender than that of relief to the victims. The anxiety shown to highlight the rights of the offender is not shown in enforcing law relating to compensation for the victim, which too has a social purpose to serve - The Court has to take into consideration the effect of the offence on the victim's family even though human life cannot be restored, nor can its loss be measured by the length of a prison sentence. No term of months or years imposed on the offender can reconcile the family of a deceased victim to their loss, nor will it cure their anguish but then monetary compensation will at least provide some solace. Justice remains incomplete without adequate compensation to the victim. Justice can be complete only when the victim is also compensated. In order to give complete mental satisfaction to the victim, it is extremely essential to provide some solace to him in the form of compensation so that it can work as a support for the victim to start his life afresh. Sections 357 and 357A of CrPC - Compensation to victim(s) of crime - HELD THAT - Section 357 CrPC empowers the Court to award compensation to the victim(s) of the offence in respect of the loss/injury suffered. The object of the section is to meet the ends of justice in a better way. This section was enacted to reassure the victims that they are not forgotten in the criminal justice system. The amount of compensation to be awarded under Section 357 CrPC depends upon the nature of crime, extent of loss/damage suffered and the capacity of the accused to pay for which the Court has to conduct a summary inquiry - The law contained in Section 357(3) CrPC, has, by and large, been mostly neglected or ignored. There is, therefore not only statutory empowerment under Section 357(3) CrPC of the appellate court to make an appropriate order regarding compensation but the mandatory duty of every court, at the trial stage as well as the appellate court to consider and pass an order of fair and reasonable compensation on relevant factors. Principles in regard to methodology of assessing compensation - HELD THAT - The multiplier method is based on the pecuniary loss caused to the dependants by the death of the victim of the road accident. The dependency of the dependants is determined by taking the annual earning of the deceased at the time of the accident. Thereafter, effect is given to the future prospects of the deceased. After the income of the deceased is established, the deduction is made towards the personal expenses of the deceased which he would have spent on himself. If the deceased was unmarried, normally 50% of the income is deducted towards his personal expenses. If the deceased was married and leaves behind two to three dependents, 1/3rd deduction is made; if the deceased has left behind four to six family members, deduction of 1/4th of his income is made and where the number of dependent family members exceeds six, the deduction of 1/5th of the income is made - The annual loss of dependency of Rs.90,000/- is multiplied by the multiplier of 15 to compute the total loss of dependency as Rs.13,50,000/-. Compensation has to be added towards loss of love and affection, loss of consortium, loss to estate, medical expenses, emotional harm/trauma, mental and physical shock etc. and funeral expenses. Interim compensation - HELD THAT - In Bodhisattwa Gautam v. Subhra Chakraborty, 1995 (12) TMI 420 - SUPREME COURT , the Supreme Court held that the Court has the right to award interim compensation and the jurisdiction to pay interim compensation shall be treated to be part of the overall jurisdiction of the Courts trying the offence. Code of Criminal Procedure vests in the High Court plenary powers relating to the superintendence over the subordinate Courts including the appointment, posting, promotion and transfer of the judicial officers. Section 194 empowers the High Court to direct a Sessions Judge to try particular cases. Section 407 empowers the High Court to transfer the cases on judicial side and Section 483 empowers the High Court to transfer the cases on the administrative side - Section 483 empowers the High Court to exercise superintendence over the subordinate judiciary. Rule 3 of Part B of Chapter 26 of Delhi High Court Rules empowers the High Court to transfer the cases on administrative grounds. To summarize, the High Court has both judicial as well as administrative power to regulate administration of justice. The ld. Addl. Sessions Judge was duly empowered to pronounce the judgment by virtue of Note 2 appended to the transfer order dated 13th March, 2020. The pronouncement of the judgment by ld. Addl. Sessions Judge is in terms of Section 353 CrPC. The delay in pronouncing the judgment is a mere irregularity and is hereby condoned. Notwithstanding validity of Note 2, the impugned judgment is also protected by Sections 462 and 465 CrPC and the de facto doctrine. Victimology - HELD THAT - Victims are unfortunately the forgotten people in the criminal justice delivery system. Victims are the worst sufferers. Victims family is ruined particularly in cases of death and grievous bodily injuries. This is apart from the factors like loss of reputation, humiliation, etc. The Court has to take into consideration the effect of the offence on the victim's family even though human life cannot be restored but then monetary compensation will at least provide some solace - Justice remains incomplete without adequate compensation to the victim. Justice can be complete only when the victim is also compensated. Sections 357 357A of CrPC - HELD THAT - The object of the Section 357(3) CrPC is to provide compensation to the victims who have suffered loss or injury by reason of the act of the accused. Mere punishment of the offender cannot give much solace to the family of the victim civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread earner of the family - The Supreme Court in Ankush Shivaji Gaikwad 2013 (5) TMI 1015 - SUPREME COURT has given directions that the Courts shall consider Section 357 CrPC in every criminal case and if the Court fails to make an order of compensation, it must furnish reasons. Quantum of compensation - HELD THAT - The amount of compensation is to be determined by the Court depending upon gravity of offence, severity of mental and physical harm/injury suffered by the victim, damage/losses suffered by the victims and the capacity of the accused to pay. While determining the paying capacity of the accused, the Court has to take into consideration the present occupation and income of the accused. The accused can also be directed to pay monthly compensation out of his income. Financial capacity of the accused - HELD THAT - Before awarding compensation, the Trial Court is required to ascertain the financial capacity of the accused. This Court has formulated the format of an affidavit to be filed by the accused after his conviction to disclose his assets and income which is Annexure-A hereto. Victim Impact Report - HELD THAT - This Court has formulated the format of Victim Impact Report (VIR) to be filed by DSLSA in every criminal case after conviction. Victim Impact Report (VIR) shall disclose the impact of the crime on the victim. The format of the Victim Impact Report in respect of criminal cases, other than motor accident cases, is Annexure B-1. The format of Victim Impact Report in respect of motor accident cases is Annexure B-2. Summary Inquiry - HELD THAT - A summary inquiry is necessary to ascertain the impact of crime on the victim, the expenses incurred on prosecution as well as the paying capacity of the accused - This Court is of the view that the summary inquiry be conducted by Delhi State Legal Services Authority (DSLSA) considering that DSLSA is conducting similar inquiry under the Delhi Victim Compensation Scheme, 2018 and is well conversant with the manner of conducting the inquiry. The Trial Court shall thereafter consider the Victim Impact Report of the DSLSA with respect to the impact of crime on the victims, paying capacity of the accused and expenditure incurred on the prosecution; and after hearing the parties including the victims of crime, the Court shall award the compensation to the victim(s) and cost of prosecution to the State, if the accused has the capacity to pay the same - If the accused does not have the capacity to pay the compensation or the compensation awarded against the accused is not adequate for rehabilitation of the victim, the Court shall invoke Section 357A CrPC to recommend the case to the Delhi State Legal Services Authority for award of compensation from the Victim Compensation Fund under the Delhi Victims Compensation Scheme, 2018. Delhi State Legal Services Authority is directed to prepare a proposal for additional manpower after examining number of summary inquiries that are likely to be conducted by DSLSA every month and the proposal be sent to Government of NCT of Delhi within one week whereupon Government of NCT of Delhi shall complete all necessary formalities within three weeks to ensure that the directions of this Court relating to the summary inquiry by DSLSA in every criminal case are implemented w.e.f. 01st January, 2021 - List for reporting compliance and further directions on 25th February, 2021. This Court is of the view that the mandatory summary inquiry by DSLSA into the loss/damage suffered by the victim and the paying capacity of the accused after conviction; and the affidavit of accused in format of Annexure-A; and Victim Impact Report by DSLSA in the format of Annexure-B and Annexure B-1 should be incorporated in the Statue/Rules - National Judicial Academy is reporting the best practices of the High Courts on their website (www.nja.nic.in) under the head of Practices Initiatives of various High Courts. Copy of this judgment along with Annexure-A, Annexure-B and Annexure B-1 be sent to National Judicial Academy.

Summary

Issues Involved:
1. Jurisdiction of the Additional Sessions Judge post-transfer.
2. Validity of Note 2 appended to the transfer order dated 13th March 2020.
3. Applicability of the de facto doctrine.
4. Compensation to victims under Sections 357 and 357A CrPC.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Additional Sessions Judge post-transfer:
The appellants challenged the jurisdiction of the Additional Sessions Judge (ASJ) who pronounced the judgment after being transferred from Karkardooma Courts to Rohini Courts. The Court held that the ASJ was empowered to pronounce the judgment by virtue of Note 2 appended to the transfer order dated 13th March 2020. The pronouncement of the judgment by the ASJ was in terms of Section 353 CrPC. The delay in pronouncing the judgment was deemed a mere irregularity and was condoned as it did not cause any prejudice to the accused.

2. Validity of Note 2 appended to the transfer order dated 13th March 2020:
The Court declared Note 2 appended to the transfer order dated 13th March 2020 as legal and valid. Note 2 was issued by the High Court in exercise of its general power of superintendence over all subordinate courts under Articles 227 and 235 of the Constitution. The Court overruled the contrary finding of the Division Bench in Jitender’s case, which had commented on the validity of Note 2 without considering Articles 227 and 235 of the Constitution and Section 462 CrPC. The Division Bench had not issued notice to the High Court on the administrative side before considering the validity of Note 2.

3. Applicability of the de facto doctrine:
The Court held that the impugned judgment is protected by the de facto doctrine based on necessity and public policy. The de facto doctrine ensures that acts performed by a person under the color of lawful authority are considered valid even if the appointment is later found to be defective. This doctrine was applied to protect the judgments/orders of judges whose appointments were subsequently quashed.

4. Compensation to victims under Sections 357 and 357A CrPC:
The Court emphasized the importance of compensating victims of crime. Section 357 CrPC empowers the Court to award compensation to victims who have suffered loss or injury by reason of the act of the accused. The Court directed that a summary inquiry be conducted by the Delhi State Legal Services Authority (DSLSA) to ascertain the impact of the crime on the victim, the expenses incurred on prosecution, and the paying capacity of the accused. The Court formulated the format of an affidavit to be filed by the accused to disclose his assets and income. The Court also formulated the format of the Victim Impact Report to be filed by DSLSA. The Court directed that in cases where the accused does not have the capacity to pay the compensation, the Court shall invoke Section 357A CrPC to recommend the case to DSLSA for award of compensation from the Victim Compensation Fund under the Delhi Victim Compensation Scheme, 2018.

Conclusion:
The High Court has both judicial and administrative power to regulate the administration of justice. Note 2 appended to the transfer order dated 13th March 2020 is declared legal and valid. The impugned judgment is protected by Sections 462 and 465 CrPC and the de facto doctrine. The Court emphasized the importance of compensating victims and directed a summary inquiry by DSLSA to ascertain the impact of the crime on the victim and the paying capacity of the accused. The Court formulated the format of the affidavit to be filed by the accused and the Victim Impact Report to be filed by DSLSA.