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TMI Blog2020 (11) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... er Sections 302/34 IPC. The ld. Addl. Sessions Judge reserved the judgment, after conclusion of the arguments, on 06th March, 2020 while being posted at Karkardooma Courts. On 13th March, 2020, ld. Addl. Sessions Judge was transferred from Karkardooma Courts to Rohini Courts and he pronounced the impugned judgments on 09th July, 2020. The appellants have challenged impugned judgments on the two grounds: first, that the ld. Addl. Sessions Judge ceased to have jurisdiction in respect of Karkardooma Courts matters upon being transferred with immediate effect vide transfer order No.10/G-I/Gaz.IA/DHC/2020 dated 13th March, 2020 and he was not empowered to deal with this case which was tried in the jurisdiction of Karkardooma Courts and second, that 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, was invalid. Reliance is placed on the Division Bench judgment of this Court in Jitender @ Kalle v. State, (2013) 196 DLT 103 (DB). 2. An important question of law has arisen for consideration before this Court with respect to the validity of Note 2 appended to the transfer order dated 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20, when the Division Bench of this Court issued notice to the State. Considering that the grounds raised by the appellants had wide ramifications on the Criminal Justice System, the Division Bench of this Court issued notice to the High Court on administrative side. The Division Bench further appointed Mr. Vikas Pahwa, Senior Advocate to assist this Court as amicus curiae. The Division Bench further directed the ld. Addl. Sessions Judge to defer the hearing on sentence by two weeks. 8. On 10th August, 2020, Mr. Vikas Pahwa, ld. amicus curiae, submitted that this case is squarely covered by the law laid down by the Supreme Court in Gokaraju Rangaraju v. State of Andhra Pradesh, (1981) 3 SCC 132 in which the Supreme Court held that the judgment passed by a Sessions Judge would be legal and valid even if the appointment of the concerned Judge was subsequently declared to be invalid. The Supreme Court held that the de facto doctrine was well established. The Supreme Court considered the earlier cases on the de facto doctrine. The Supreme Court also noted that the de facto doctrine was recognized by British as well as American Courts. The Supreme Court further noted that Article 233A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal issues raised by the High Court. 12. Mr. Kanhaiya Singhal, ld. counsel for the appellant Mr. Rajshekhar Rao, ld. counsel for the High Court; Mr. Rahul Mehra, ld. Standing Counsel and Mr. Vikas Pahwa, ld. amicus curiae, further submitted that there is a need to frame guidelines for award of compensation under Section 357 CrPC. It was submitted that the Courts below are not conducting any inquiry to ascertain the impact of crime on the victims and the paying capacity of the accused before awarding the compensation. It was further submitted that guidelines be framed in this regard. Prof. G.S. Bajpai, Professor of Criminology & Criminal Justice, National Law University, Delhi, who has done extensive research on Victimology has been appointed as amicus curiae to assist in this case in framing guidelines under Section 357 CrPC. Submissions of Mr. Rajshekhar Rao, Ld. counsel for Delhi High Court 13. The ld. Addl. Sessions Judge was transferred from Karkardooma Courts to Rohini Courts by the High Court vide transfer order dated 13th March, 2020 and Note 2 appended to the transfer order dated 13th March, 2020 is under challenge. Note 2 appended to the Transfer Order dated 13th March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... October, 2009; 14th December, 2009; 04th February, 2010; 08th March, 2010; 26th April, 2010, 26th August, 2010; 09th September, 2010; 29th October, 2010; 15th December, 2010; 23rd December, 2010; 02nd February, 2011; 30th September, 2019; 19th November 2019; 04th December, 2019; 19th February, 2020. Various other versions similar to Note 2 have been used in the transfer/posting orders by this High Court for transfer of judicial officers of the subordinate judiciary. Powers of the High Court 17. Article 227 of the Constitution empowers the High Court with the superintendence over all 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 empower the High Court to transfer the cases on administrative side. Article 235 of the Constitution empowers the High Court with control over subordinate Courts including posting and promotion of Judicial Officers. 18. Code of Criminal Procedure vests plenary powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... took place in a wrong jurisdiction unless it has resulted in failure of justice. Section 465 protects the irregularities in the complaint, summons, warrants, proclamation, order, judgment or other proceedings before or during trial. Reliance is placed on Willie (William) Slaney v. State of M.P., (1955) 2 SCR 1140 and State of M.P. v. Bhooraji, (2001) 7 SCC 679. Concept of "Illegality" and "Irregularity" in CrPC 21. In Pulukuri Kotayya v. King-Emperor, (1947) 1 Mad LJ 219, the Privy Council held that the distinction between an illegality and an irregularity is one of degree rather than of kind. In Willie (William) Slaney (supra), the Constitution Bench of the Supreme Court held that the illegality that strikes at the root of the trial and cannot be cured is not merely an irregularity but the illegality that may strike at the root of the trial and can be cured is merely an irregularity. Concept of "Failure of Justice" 22. The conviction cannot be set aside merely on the ground of procedural irregularity unless it has resulted in failure of justice. 23. In Darbara Singh v. State of Punjab, (2012) 10 SCC 476, the accused challenged the conviction under Section 302 IPC on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well as convenience of the witnesses who have to appear before the Court. 28. While considering the ambit of Sections 462 and 465, the Supreme Court in State of Karnataka v. Kuppuswamy Gownder, (1987) 2 SCC 74 held that the Scheme of CrPC is that where there is no inherent lack of jurisdiction either on the ground of lack of territorial jurisdiction or on the ground of any irregularity of procedure, an order or sentence awarded by a competent Court could not be set aside unless prejudice is pleaded and proved which will mean failure of justice. The Supreme Court specifically observed that "even if a trial takes place in a wrong place where the Court has no territorial jurisdiction to try the case still unless failure of justice is pleaded and proved, the trial cannot be quashed". Even in cases where trial was conducted in the wrong jurisdiction, it has been held by the Supreme Court that the same would not vitiate trial unless there has been a failure of justice. Reference is made to Mangaldas Raghavji Ruparel v. State of Maharashtra, (1965) 2 SCR 894; Ram Chandra Prasad v. State of Bihar, (1962) 2 SCR 50; State of A.P. v. Cheemalapati Ganeswara Rao (1964) 3 SCR 297 and Kamil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Division Bench judgment in Jitender's case 33. Note 2 attached to the transfer order dated 08th February, 2010 was not under challenge in Jitender's case. In that case, the Division Bench was dealing with the validity of the judgments by which the appellant were convicted, though dictated and signed by the Judge who heard the arguments but were "announced" by a successor Judge after the transfer of the predecessor Judge. Thereafter, the successor Judge heard the arguments on the point of sentence and passed the orders on sentence. The accused challenged the conviction on the ground that the judgment was not duly pronounced and Section 353 was not complied with. The question before the Division Bench was whether such "announcements" could amount to valid judgments? The Division Bench held that the successor Judge cannot adopt her predecessor's written judgment as her own and CrPC does not permit pronouncement of an order by a successor Judge authored, signed and dated by a predecessor Judge. Para 47 of the judgment is reproduced h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a precedent. The relevant portion is as under:- "12. ... Reliance on the decision without looking into the factual background of the case before it, is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving judgment that constitutes a precedent. The only thing in a Judge's decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin a particular time frame subsequent to their transfer. It is also clear that Note 2 is not in violation of any of the legal principles stipulated in CrPC. While examining the validity of an administrative order issued by the Patna High Court under Section 9(6) CrPC that the trial will be conducted inside the Jail premises for the expeditious trial of the case, it was held by the Supreme Court in Mohd. Shahabuddin v. State of Bihar, (2010) 4 SCC 653 that while reviewing administrative decisions, standards of natural justice should be maintained and the power of judicial review must not be applied blindly. 38. Pertinently, Note 2 is issued in exercise of the supervisory jurisdiction of this Court under Article 235 of the Constitution as also in furtherance of the powers of the High Court under Section 483 CrPC to ensure expeditious and proper disposal of cases by the Courts. It must also be kept in mind that there is presumption that all judicial and official acts have been regularly performed by the judicial officers. As such, unless prejudice or failure of justice can be shown, administrative orders issued by High Court ought not to be set aside. Procedure adopted by Ld. ASJ h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Siddharth Khera, CM(M) No. 1637/2019 decided by this Court on 18th November, 2019. 42. Even though recommendations have been made by the Supreme Court directing that judgments be delivered in a time bound manner in Anil Rai v. State of Bihar, (2001) 7 SCC 318, none of the recommendations made therein stipulate that judgments ought to be set aside merely on account of delay of four months. Even though there have been instances where the Supreme Court has set aside judgments on account of delay in pronouncements, the cases pertain to a delay of over two years. Reference is made to Kanhaiyalal v. Anupkumar, (2003) 1 SCC 430 and Bhagwandas Fatehchand Daswani v. HPA International, (2000) 2 SCC 13. Further, practice directions of this Court as stipulated in the Delhi High Court Rules do not stipulate that judgments ought to set aside merely on account of delay. Right of accused to a speedy trial and interest of society 43. It is clear that various provisions have been stipulated in the CPC and CrPC in order to ensure that there is no delay in delivery and pronouncement of judgments/orders. In the event that the said provisions are violated, a Court may consider setting aside the conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... araju Rangaraju (supra), would protect the impugned judgments in the present appeals. In Gokaraju Rangaraju (supra), the Supreme Court considered the validity of the judgments and orders passed by the Sessions Judges whose appointments were subsequently quashed by the Supreme Court. The Supreme Court applied the de facto doctrine to protect the judgments/orders of such Judges. 45. Article 233A was introduced in the Constitution as a result of the 20th Amendment to the Constitution pursuant to the Judgment in Chandra Mohan (supra). Article 233A is reproduced herein under: "Article 233A - Validation of appointments of, and judgments, etc., delivered by, certain district judges Notwithstanding any judgment, decree or order of any court, (a)(i) no appointment of any person already in the judicial service of a State or of any person who has been for not less than seven years an advocate or a pleader, to be a district judge in that State, and (ii) no posting, promotion or transfer of any such person as a district judge, made at any time before the commencement of the Constitution (Twentieth Amendment) Act, 1966, otherwise than in accordance with the provisions of article 233 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Judge has to apply his mind by appreciating the evidence, which he has to declare while pronouncing the judgment. 49. Ld. ASJ had the jurisdiction to pass the judgment being a de facto Judge in service and holding a court of competent jurisdiction in Delhi. The ld. ASJ pronounced the judgment on 09th July, 2020, assuming to have jurisdiction in view of the Transfer Order passed by the High Court on 13th March, 2020. To test the validity of the judgment pronounced on 09th July, 2020 by the ld. ASJ, de facto doctrine has to be applied. This doctrine is engrafted as a matter of public policy and necessity to protect the interest of public and individuals involved in the official acts of persons exercising the duty under lawful authority. Since the judgments pronounced by the Judges post-transfer in different jurisdictions, involves the personal liberty of convicts at large, the public policy gets involved. This doctrine is well established that "the acts of the officers de facto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid or binding as if they were t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mar v. State of Jharkhand, (2013) 15 SCC 460; Ajay Singh v. State of Chhattisgarh, (2017) 3 SCC 330 and Achutananda Baidya v. Prafullya Kumar Gayen, (1997) 5 SCC 76. 54. In the present case, the transfer order dated 13th March, 2020 has been issued by the High Court in exercise of its administrative power of superintendence under Article 227 of the Constitution by empowering the Judges to pronounce the judgments in reserved matters. The administrative order of the High Court is not in conflict with the statutory provisions as the power is exercised for administrative exigency, without impinging upon or prejudicially affecting the rights and interests of the parties to any judicial proceeding. Section 462 CrPC protects the finding, sentence or order challenged on the ground of jurisdiction of a Sessions division 55. Section 462 CrPC protects the finding, sentence or order of any criminal Court on the ground that the enquiry, trial or other proceedings took place in a wrong Sessions division unless such error has occasioned failure of justice. 56. In Padam Singh Thakur v. Madan Chauhan, 2016 SCC OnLine HP 4260, the conviction was challenged on the ground that the case was adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase being committed to it. The Supreme Court held that a mere irregularity, which is not in the nature of illegality, can be cured by aid of Section 465 CrPC unless there has been failure of justice. Relevant portion of the judgment is reproduced as under:- "12. Section 465 of the Code falls within Chapter XXXV under the caption "Irregular Proceedings". The chapter consists of seven sections starting with Section 460 containing a catalogue or irregularities which the legislature thought were not enough to axe down concluded proceedings in trials or enquiries. Section 461 of the Code contains another catalogue of irregularities which in the legislative perception would render the entire proceedings null and void. It is pertinent to point out that among the former catalogue constrains the instance of a Magistrate, who is not empowered to take cognizance of offence, taking cognizance erroneously and in good faith. The provision says that the proceedings adopted in such a case, though based on such erroneous order, "shall not be set aside merely on the ground of his not being so empowered." 13. It is useful to refer to Section 462 of the Code which says that even proceedings conduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an uphill task for the accused in this case to show that failure of justice had in fact occasioned merely because the specified Sessions Court took cognizance of the offences without the case being committed to it. The normal and correct procedure, of course, is that the case should have been committed to the Special Court because that court being essentially a Court of Sessions can take cognizance of any offence only then. But if a specified Sessions Court, on the basis of the legal position then felt to be correct on account of a decision adopted by the High Court, had chosen to take cognizance without a committal order, what is the disadvantage of the accused in following the said court?" (Emphasis Supplied) 61. In the present case there is no "failure of justice" as the predecessor Judge presided over the trial, heard the final arguments, authored the judgment and finally pronounced the judgment in consonance with Section 353 CrPC. Even if it is presumed for the sake of arguments, that any irregularity has been caused due to the delay in pronouncement, it is curable under Section 465 CrPC. In Jitender's case, the defect was not an irregularity but rather an illegality which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... improper on this count. 65. Note 2 of the transfer/posting order was issued by the High Court while exercising powers under Article 227 of the Constitution. If given an opportunity, the Delhi High Court could have defended Note 2, being an administrative order passed by this High Court in exercise of the power of superintendence under Article 227, which is the basic structure of the Constitution. The Division Bench thus did not take into consideration the power of superintendence of the High Court under Article 227 of the Constitution. 66. The Division Bench overlooked the mandate of Section 462 CrPC, which categorically states that no finding, sentence or order can be challenged on the ground of jurisdiction of any Sessions division. 67. The Division Bench failed to take into consideration the mandate of Section 465 CrPC, which categorically states that unless there has been a failure of justice, convictions cannot be set aside merely on the ground of procedural irregularity. 68. Since the relevant provisions of CrPC, Article 227 of the Constitution and various judgments of the Supreme Court in this regard were overlooked by the Division Bench while passing the Judgment in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re chapter to 'Victimology' in which the growing emphasis on victim's rights in criminal trials was discussed extensively as under: "1. Increasingly the attention of criminologists, penologists and reformers of criminal justice system has been directed to victimology, control of victimization and protection of victims of crimes. Crimes often entail substantive harms to people and not merely symbolic harm to the social order. Consequently the needs and rights of victims of crime should receive priority attention in the total response to crime. One recognized method of protection of victims is compensation to victims of crime. The needs of victims and their family are extensive and varied. xxx xxx xxx 9.1 The principles of victimology has foundations in Indian constitutional jurisprudence. The provision on Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) form the bulwark for a new social order in which social and economic justice would blossom in the national life of the country (Article 38). Article 41 mandates inter alia that the State shall make effective provisions for "securing the right to public assistance in cases of disablemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family. In Malimath Committee Report (March 2003), it was observed: "6.7.1 Historically speaking, Criminal Justice System seems to exist to protect the power, the privilege and the values of the elite sections in society. The way crimes are defined and the system is administered demonstrate that there is an element of truth in the above perception even in modern times. However, over the years the dominant function of criminal justice is projected to be protecting all citizens from harm to either their person or property, the assumption being that it is the primary duty of a State under rule of law. The State does this by depriving individuals of the power to take law into their own hands and using its power to satisfy the sense of revenge through appropriate sanctions. The State (and society), it was argued, is itself the victim when a citizen commits a crime and thereby questions its norms and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 357 are not foreclosed but continued in Section 357A CrPC. The Courts are empowered to travel beyond Section 357 CrPC and award compensation where relief under Section 357 CrPC is inadequate or where the cases end in acquittal or discharge. This amendment has brought forth rehabilitation of victims to the forefront and it is the Court's duty to make such provisions operative and meaningful. 75. Pursuant to the directions of the Division Bench of this Court in judgment dated 07th July, 2008 in Criminal Appeal No. 5/2000 titled Khem Chand v. State of Delhi, Delhi State Legal Services Authority is granting interim compensation to the victims under the Delhi Victims Compensation Scheme, 2011 at initial stage for their rehabilitation on the recommendations of SHO of the case concerned and also by the Court concerned while disposing the matter. The nature of extent of victimisation has to be adequately understood considering the social and stark financial disparity amongst our citizens. The rights and rehabilitation needs of each victim have to be minutely gauged, recognized and redressed. Keeping this in consideration, The Delhi Victim Compensation Scheme, 2011 was promulgated wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly with sub-section (3). It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way." The same position was reiterated by courts in Manish Jalan v. State of Karnataka, (2008) 8 SCC 225; K.A. Abbas H.S.A. v. Sabu Joseph, (2010) 6 SCC 230 and Roy Fernandes v. State of Goa, (2012) 3 SCC 221. 78. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cost of litigation even in criminal cases also though comparatively criminal cases run for a lesser duration. The contributing factors in the increase is the fact that the accused who is in the state custody is deemed to be innocent and therefore, all expenses of such person as long as he is in custody is borne by the State itself. At the end of the trial, Courts may ask the accused to pay for the expenses, which are surprisingly limited to the fine to be paid under Section 357. The litigants take advantage of such expenses borne by the State and the State ends up paying amount for trips to the hospital and other places of the accused. This fact has been predominantly deprecated by the Division Bench in Vikas Yadav (supra), where the Court went to miniscule minutes of each penny spent on the accused during the entire trial and ordered for the recovery of the same. The Division Bench imposed a fine of Rupees fifty lakhs on the accused and ordered it to be disbursed. The Supreme Court in appeal Vikas Yadav v. State of Uttar Pradesh, (2016) 9 SCC 541 upheld the compensation Scheme under Section 357 CrPC and modified it by enhancing the fine and determining the compensation as per fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompensation of rupees ten lakhs. It will be payable by the Haryana State Legal Services authority within one month from receipt of a copy of this order. If the funds are not available for the purpose with the said authority, the State of Haryana will make such funds available within one month from the date of receipt of a copy of this judgment and the Legal Services Authority will disburse the compensation within one month thereafter". 83. In Ankush Shivaji Gaikwad (supra) the Supreme Court developed on its position taken in Hari Singh (supra) and held that Section 357 CrPC confers a power coupled with a duty on the Courts to apply its mind to the question of awarding compensation in every criminal case. The Supreme Court laid down the proposition that: - "While the award or refusal of compensation in a particular case may be within the Court's discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation". The Court made application of Sections 357 and 357A CrPC mandatory while sentencing the accused by directing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formats of the affidavit of the victim and format of the affidavit of the accused. Submissions of Mr. Rahul Mehra, Ld. Standing Counsel, Govt. of NCT of Delhi 86. On 29th November, 1985, The General Assembly of United Nations adopted the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which emphasized the need to set norms and minimum standards for protection of victims of crime. The said declaration recognized four major components of rights of victims of crime, namely, access to justice and fair treatment; restitution; compensation and assistance. Section 357A CrPC was incorporated to give effect to the UN Declaration. 87. Every victim of crime undergoes immense physical, emotional and mental trauma apart from economic losses. State as a custodian of all Fundamental Constitutional Rights is not only legally but also morally and socially bound to come to the rescue of victims and provide them all help so that they can overcome their trauma, both emotionally as well as financially. 88. The nature and extent of victimisation has to be adequately understood considering the social and stark financial disparity amongst the citizens. The rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority to move an application for grant of compensation. (vi) At any stage of the trial, Trial Court may also recommend/refer the matter for grant of Interim Compensation. The interim compensation can only be quantified by the POCSO Court. (vii) The compensation can only be granted in the categories mentioned in the Schedule to the Scheme in Part-I and Part-II. The other matters cannot be considered. Legal Services Authorities are not authorized/ empowered to go beyond the Scheme. (viii) Compensation may be recommended in State Cases i.e. matter on which cognizance has been taken on basis of Police Report (for Interim, this may be considered as Institution on basis of FIR) or on complaint cases (only when the accused has been summoned). (ix) In Part-I of the Scheme, it has been categorically provided that cases covered under the Motor Vehicles Act, 1988 wherein compensation is to be awarded by Motor Accidents Claims Tribunal, shall not be covered under the Scheme. (x) In case the victim/dependents have already been granted compensation under any other governmental scheme, District Legal Services Authority does not have any authority to grant compensation under Part- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court may: a. call for returns from such courts; b. make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and c. prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein: Provided that any rules made, forms prescribed, or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. Article 235 - Control over subordinate courts The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be veste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion shall be pronounced in open Court by the presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders,- (a) by delivering the whole of the judgment; or (b) by reading out the whole of the judgment; or (c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader. (2) Where the judgment is delivered under clause (a) of sub-section (1), the presiding officer shall cause it to be taken down in short-hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court. (3) Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of sub-section (1), as the case may be, it shall be dated and signed by the presiding officer in open Court, and if it is not written with his own hand, every page of the judgment shall be signed by him. (4) Where the judgment is pronounced in the manner specified in clause (c) of sub-section (1), the whole judgment or a copy thereof shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s convicted of any offence for having caused the death of another person or of having abetted the commission of such an offence, in paying compensation to the persons who are, under the Fatal Accidents Act, 1855 (13 of 1855), entitled to recover damages from the person sentenced for the loss resulting to them from such death; d) when any person is convicted of any offence which includes theft, criminal misappropriation, criminal breach of trust, or cheating, or of having dishonestly received or retained, or of having voluntarily assisted in disposing of, stolen property knowing or having reason to believe the same to be stolen, in compensating any bona fide purchaser of such property for the loss of the same if such property is restored to the possession of the person entitled thereto. (2) If the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed, or, if an appeal be presented, before the decision of the appeal. (3) When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to appear to the High Court: (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order- (i) that any offence be inquired into or tried by any Court not qualified under Sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence; (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (iii) that any particular case be committed for trial to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself. (2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative: Provided that no application shall lie to the High Court for transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice to investigate an offence; (c) to hold an inquest under Section 176; (d) to issue process under Section 187, for the apprehension of a person within his local jurisdiction who has committed an offence outside the limits of such jurisdiction; (e) to take cognizance of an offence under clause (a) or clause (b) of sub-section (1) of Section 190; (f) to make over a case under sub-section (2) of Section 192; (g) to tender a pardon under Section 306; (h) to recall a case and try it himself under Section 410; or (i) to sell property under Section 458 or Section 459, erroneously in good faith does that thing, his proceedings shall not be set aside merely on the ground of his not being so empowered. Section 461 - Irregularities which vitiate proceedings If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:- (a) attaches and sells property under Section 83; (b) issues a search-warrant for a document, parcel or other thing in the custody of a postal or telegraph authority; (c) demands security to keep the peace; (d) demands security for good behaviour; (e) discharges a person lawfully bound to be of good beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cases by such Magistrates. Relevant Judgments Powers of the High Court 97. In Hari Vishnu Kamath v. Syed Ahmad Ishaque, (1955) 1 SCR 1104, the Supreme Court held that Article 227 of the Constitution confers the power of Superintendence to the High Courts, both on judicial and administrative side. Relevant portion of the said judgment is reproduced hereunder: "20. We are also of opinion that the Election Tribunals are subject to the superintendence of the High Courts under Article 227 of the Constitution, and that superintendence is both judicial and administrative. That was held by this Court in Waryam Singh v. Amarnath [1954 SCR 565] where it was observed that in this respect Article 227 went further than Section 224 of the Government of India Act, 1935, under which the superintendence was purely administrative, and that it restored the position under Section 107 of the Government of India Act, 1915. It may also be noted that while in a certiorari under Article 226 the High Court can only annul the decision of the Tribunal, it can, under Article 227, do that, and also issue further directions in the matter. We must accordingly hold that the application of the appellant for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice. As regards finding of fact of the inferior court, the High Court should not quash the judgment of the subordinate court merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Article 227 to interfere with the finding of fact if the subordinate court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse." 100. In Kamlesh Kumar v. State of Jharkhand, (2013) 15 SCC 460, the Supreme Court rejected the challenge to the transfer of a case by the High Court on administrative side on the ground that the High Court can transfer the case by exercising its administrative power of superintendence under Article 227 read with Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so as it has, as a matter of fact, found that there was no judgment on record. There is no illegality. Be it noted, the Division Bench in the appeal preferred at the instance of the present appellants thought it appropriate to quash the order as there is no judgment on record but a mere order-sheet. In a piquant situation like the present one, we are disposed to think that the High Court was under legal obligation to set aside the order as it had no effect in law. The High Court has correctly done so as it has the duty to see that sanctity of justice is not undermined. The High Court has done so as it has felt that an order which is a mere declaration of result without the judgment should be nullified and become extinct. 29. The case at hand constrains us to say that a trial Judge should remember that he has immense responsibility as he has a lawful duty to record the evidence in the prescribed manner keeping in mind the command postulated in Section 309 CrPC and pronounce the judgment as provided under the Code. A Judge in charge of the trial has to be extremely diligent so that no dent is created in the trial and in its eventual conclusion. Mistakes made or errors committed are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e uncalled for or in any manner prejudicial to the petitioner/accused. 8. In Ranbir Yadav v. State of Bihar, (1995) 4 SCC 392, the High Court had exercised the power of transfer on the petition filed by the accused from jail, inter alia, complaining that they could not be accommodated in the Court room as a result of which some of them had to remain outside. This order was challenged before the Supreme Court on the ground that administrative power could not be exercised when judicial power was not only available and operational, but was equally effective and efficacious. The Supreme Court held that so long as power can be and is exercised purely for administrative exigency without impinging upon and prejudicially affecting the rights or interests of the parties to any judicial proceedings, it could not be said that administrative powers must yield to judicial powers simply because they happened to co-exist in a given case. 9. Applying the ratio of the decision in Ranbir Yadav's case (supra), it cannot be said that the exercise of administrative power in the instant case by the head of the High Court was not supported by any good or cogent reason or that the same was vexatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, the answer to this question must be in the negative. It cannot be also lost sight of that though assurance of a fair trial is the final imperative of the dispensation of justice, hyper-sensitivity cannot be allowed to impede the course of justice to such an extent that the resultant delay results in failure of justice. Also, normally the complainant has a right to choose any Court having jurisdiction and the accused cannot dictate where the case against him should be tried." 103. In Willie (William) Slaney v. State of M.P., (1955) 2 SCR 1140, the Supreme Court held that every error or omission in the trial would not vitiate the trial unless the accused can show substantial prejudice. Relevant portion of the judgment is reproduced hereunder:- "5. ... the Code is a code of procedure and, like all procedural laws, is designed to further the ends of justice and not to frustrate them by the introduction of endless technicalities. The object of the Code is to ensure that an accused person gets a full and fair trial along certain well established and well-understood lines that accord with our notions of natural justice. If he does, if he is tried by a competent court, if he is told ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstrued to mean that that only applies when there is an express prohibition and there is prejudice. In Subramania Iyer case [(1901) LR 28 IA 257, 263] the Privy Council said: "The remedying of mere irregularities is familiar in most systems of jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission or irregularity." This was examined and explained in Abdul Rahman v. King-Emperor (1926) LR 54 IA 96, 109 as follows: "The procedure adopted was one which the Code positively prohibited, and it was possible that it might have worked actual injustice to the accused." 12. ............Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice, the matter resolves itself to a question of prejudice. Some violations of the Code will be so obvious that they will speak for themselves as, for example, a refusal to give the accused a hearing, a refusal to allow h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an irregularity is one of degree rather than of kind." (Emphasis Supplied) 105. In Willie (William) Slaney v. State of M.P. (supra), the Constitution Bench of the Supreme Court held that the irregularity is curable if it has not resulted in failure of justice but the irregularity is not curable if it has resulted in failure of justice. Relevant portion of the said judgment is reproduced hereunder: "31. The sort of problem that we are now examining can only arise when an express provision of the Code is violated and then the root of the matter is not whether there is violation of an express provision, for the problem postulates that there must be, nor is it whether the provision is expressed in positive or in negative terms, but what are the consequences of such disregard. Does it result in an illegality that strikes at the root of the trial and cannot be cured or is it an irregularity that is curable? 32. We have used the terms "illegality" and "irregularity" because they h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed challenged the conviction under Section 302 IPC on the ground of defect of framing of charges. The Supreme Court rejected the challenge on the ground that there was no failure of justice. The Supreme Court held that "Failure of Justice" means serious prejudice caused to the accused. Relevant portion of the judgment is reproduced hereunder: "21. "Failure of justice" is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be "failure of justice"; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be overemphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under the Indian criminal jurisprudence. "Prejudice" is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to take additional evidence by the appellate court itself or to direct such additional evidence to be collected by the trial court. But to replay the whole laborious exercise after erasing the bulky records relating to the earlier proceedings, by bringing down all the persons to the court once again for repeating the whole depositions would be a sheer waste of time, energy and costs unless there is miscarriage of justice otherwise. Hence the said course can be resorted to when it becomes unpreventable for the purpose of averting "a failure of justice". The superior court which orders a de novo trial cannot afford to overlook the realities and the serious impact on the pending cases in trial courts which are crammed with dockets, and how much that order would inflict hardship on many innocent persons who once took all the trouble to reach the court and deposed their versions in the very same case. To them and the public the re-enactment of the whole labour might give the impression that law is more pedantic than pragmatic. Law is not an instrument to be used for inflicting sufferings on the people but for the process of justice dispensation." xxx xxx xxx "17. It is an uphill ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been stated for this conclusion. Section 465 CrPC reads as under... xxx xxx xxx It is provided that a finding or sentence passed by a court of competent jurisdiction could not be set aside merely on the ground of irregularity if no prejudice is caused to the accused. It is not disputed that this question was neither raised by the accused at the trial nor any prejudice was pleaded either at the trial or at the appellate stage and therefore in absence of any prejudice such a technical objection will not affect the order or sentence passed by competent court. Apart from Section 465, Section 462 provides for remedy in cases of trial in wrong places. Section 462 reads as under... ... This provision even saves a decision if the trial has taken place in a wrong Sessions Division or sub-division or a district or other local area and such an error could only be of some consequence if it results in failure of justice, otherwise no finding or sentence could be set aside only on the basis of such an error. 15. It is therefore clear that even if the trial before the III Additional City Civil and Sessions Judge would have in a Division other than the Bangalore Metropolitan Area for which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ature treats with importance the jurisdiction of courts for the trial of offences. Jurisdiction of courts is of two kinds. One type of jurisdiction deals with respect to the power of the courts to try particular kinds of offences. That is a jurisdiction which goes to the root of the matter and if a court not empowered to try a particular offence does try it, the entire trial is void. The other jurisdiction is what may be called territorial jurisdiction. Similar importance is not attached to it. This is clear from the provisions of Sections 178, 188, 197(2) and 531 CrPC. Section 531 provides that: "No finding, sentence or order of any criminal court shall be set aside merely on the ground that the enquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice." The reason for such a difference in the result of a case being tried by a court not competent to try the offence and by a court competent to try the offence but having no territorial jurisdiction over the area where the offence was commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no prejudice whatsoever has been caused to the accused. The Himachal Pradesh High Court held that Section 462 CrPC saves the judgments if the trial took place in a wrong Sessions Division. Relevant portion of the judgment is as under: "The expression "failure of justice" would appear, sometimes, as an etymological chameleon. The Court has to examine whether it is really a failure of justice or whether it is only a camouflage. Justice is a virtue which transcends all barriers. Neither the rules of procedure, nor (sic) technicalities of law can stand in its way. Even the law bends before justice. The order of the court should not prejudicial to anyone.......Law is not an escape route for law breakers. If this is allowed, this may lead to greater injustice than upholding the rule of the law. The guilty man, therefore, should be punished, and in case substantial justice has been done, it should be defeated when pitted against technicalities." Procedure in Criminal Cases 114. In Bharti Arora v. State of Haryana, (2011) 1 RCR (Cri) 513 (2), the Trial Judge prepared and signed a judgment but could not pronounce as the accused did not appear before the court, despite various adj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay. The Code of Criminal Procedure is essentially a Code like all other procedural laws designed to further the ends of justice and not to frustrate them by introduction of endless technicalities. The object of the Code is to ensure for the accused a full and fair trial in accordance with principles of natural justice. If there be substantial compliance with the requirements of law, a mere procedural irregularity would not vitiate the trial unless the same results (sic) in miscarriage of justice. In all procedural laws certain things are vital. Disregard of a provision in respect of those procedural laws would prove fatal to the trial and would invalidate the conviction. However, other requirements might not be so vital. Noncompliance with those procedures would be only an irregularity, which would be curable unless it has resulted in failure of justice. 74. When a Judicial Officer signs the order or judgment, it becomes final so far as he is concerned. Pronouncement in open Court, thereafter, remains only a formality by which the concerns persons would get notice of the disposal of the case and result of the trial. 75. When something requires to be done in the end of justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re intruder or usurper but one who holds office, under colour of lawful authority, though his appointment is defective and may later be found to be defective. Whatever be the defect of his title to the office, judgments pronounced by him and acts done by him when he was clothed with the powers and functions of the office, albeit unlawfully, have the same efficacy as judgments pronounced and acts done by a judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judged title to his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Pradesh, AIR 1954 SC 194, the case was heard by a Bench of two judges and the judgment was signed by both of them but one of the Judges expired before the pronouncement of the judgment in the Court. The judgment was subsequently pronounced by one of the Judges. The Supreme Court held the judgment to be valid having been pronounced in terms of Section 353 CrPC. Relevant portion of the said judgment is as under: "11. An important point therefore arises. It is evident that the decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. We lay no stress on the mode of manner of delivery, as that is not of the essence, except to say that it must be done in a judicial way in open court. But however, it is done it must be an expression of the mind of the court at the time of delivery. We say this because that is the first judicial act touching the judgment which the court performs after the hearing. Everything else up till then is done out of court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. Judges may, and often do, discuss the matter among t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure unless it has resulted in failure of justice. Section 460 protects irregularities which do not vitiate the proceedings whereas Section 461 lists out irregularities which vitiate proceedings. Section 462 protects judgment given by a Criminal Court in a proceeding which took place in a wrong jurisdiction unless it has resulted in failure of justice. Section 465 protects the irregularities in the complaint, summons, warrants, proclamation, order, judgment or other proceedings before or during trial unless there has been failure of justice. "Failure of Justice" means serious prejudice caused to the accused. 120. Section 465 CrPC protects the findings, sentence or order in respect of an irregularity and not an illegality. Illegality is a defect which strikes at the very substance of justice such as refusal to give accused a hearing, refusal to allow the accused to defend himself, refusal to explain the charge to the accused and such illegalities are not protected by Section 465. The distinction between an illegality and an irregularity is one of degree rather than of kind. 121. There are two types of jurisdictions of a Criminal Court, namely, (i) the jurisdiction with respec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge but "announced" by the successor Judge. The Division Bench held the pronouncement of the judgment by the successor Judge to be illegal for being in violation of Section 353 CrPC. While doing so, the Division Bench also commented on the validity of Note 2 which was not in issue before the Division Bench. The Division Bench observed that an administrative order cannot override the statutory provisions of CrPC. However, the Division Bench did not consider Articles 227 and 235 of the Constitution. The validity of Note 2 had to be seen under Articles 227 and 235 of the Constitution which was not considered. The Division Bench also did not consider Section 462 CrPC which clearly protects a judgment/order on account of lack of territorial jurisdiction unless it has resulted in failure of justice. The attention of the Division Bench was not drawn to the Supreme Court judgment in State of Karnataka v. Kuppuswamy Gownder (supra) on the scope of Section 462 where the trial takes at a wrong place. The well established de facto doctrine was also not considered by the Division Bench. Before deciding the validity of Note 2, the notice to the High Court was paramount. However, no notice was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion to this matter. Hopefully, the welfare State will bestow better thought and action to traffic justice in the light of the observations we have made." (Emphasis supplied) 132. In Maru Ram v. Union of India, (1981) 1 SCC 107, Krishna Iyer J., held that while social responsibility of the criminal to restore the loss or heal the injury is a part of the punitive exercise, the length of the prison term is no reparation to the crippled or bereaved but is futility compounded with cruelty. Victimology must find fulfillment, not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted not by giving more pain to the offender but by lessening the loss of the forlorn. 133. In Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263, the Supreme Court held that the criminal trial is meant for doing justice to all - the accused, the society and the victim, then alone can law and order can be maintained. The Courts do not merely discharge the function to ensure that no innocent man is punished, but also that the guilty man does not escape. 134. In State of Gujarat v. Hon'ble High Court of Gujarat, (1998) 7 SCC 392, the Supreme Court suggested that the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to mean the making of amends by an offender to his victim, or to victims of crime generally, and may take the form of compensation, the performance of some service or the return of stolen property (restitution), these being types of reparation which might be described as practical or material. The term can also be used to describe more intangible outcomes, as where an offender makes an apology to a victim and provides some reassurance that the offence will not be repeated, thus repairing the psychological harm suffered by the victim as a result of the crime." (Emphasis Supplied) 135. 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 136. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way." (Emphasis Supplied) 138. In Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd., (2007) 6 SCC 528, the Supreme Court explained the scope and purpose of grant of compensation as under: "38. The purpose of imposition of fine and/or grant of compensation to a great extent must be considered having the relevant factors therefore in mind. It may be compensating the person in one way or the other. The amount of compensation sought to be imposed, thus, must be reasonable and not arbitrary. Before issuing a direction to pay compensation, the capacity of the accused to pay the same must be judged. A fortiori, an enquiry in this behalf even in a summary way, may be necessary. Some reasons, which may not be very elaborate, may also have to be assigned; the purpose being that whereas the power to impose fine is limited and direction to pay compensation can be made for one or the other factors enumerated out of the same; but sub- section (3) of Section 357 does not impose any such limitation and thus, power thereunder should be exercised only in appropriate cases. Such a jurisdiction c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awarded against the appellant and in favour of the bereaved family under Section 357 of the Code of Criminal Procedure, 1973. This aspect arises very often and has been a subject- matter of several pronouncements of this Court. The same may require some elaboration to place in bold relief certain aspects that need to be addressed by the courts but have despite the decisions of this Court remained obscure and neglected by the courts at different levels in this country. xxx xxx xxx 48. The question then is whether the plenitude of the power vested in the courts under Sections 357 and 357- A, notwithstanding, the courts can simply ignore the provisions or neglect the exercise of a power that is primarily meant to be exercised for the benefit of the victims of crimes that are so often committed though less frequently punished by the courts. In other words, whether courts have a duty to advert to the question of awarding compensation to the victim and record reasons while granting or refusing relief to them? xxx xxx xxx 54. Applying the tests which emerge from the above cases to Section 357, it appears to us that the provision confers a power coupled with a duty on the courts to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 357 CrPC. The judgments under appeal betray ignorance of the courts below about the statutory provisions and the duty cast upon the courts. Remand at this distant point of time does not appear to be a good option either. This may not be a happy situation but having regard to the facts and the circumstances of the case and the time lag since the offence was committed, we conclude this chapter in the hope that the courts remain careful in future." (Emphasis Supplied) 143. In para 68 of the said judgment, the Supreme Court directed the copy of this judgment be forwarded to the Registrars of all the High Courts for circulation among Judges handling criminal trials and hearing appeals. 144. In Ashwani Gupta v. Government of India, 2005 (117) DLT 112, this Court held that mere punishment of the offender cannot give much solace to the family of the victim. Since the civil action for damages is a long drawn/cumbersome judicial process, the compensation of Section 357 CrPC would be useful and effective remedy. 145. 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 mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Motor Vehicles Act, 1988. 149. 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 remaining amount of income after deduction of personal expenses is taken to be the loss of dependency to the family members which is multiplied by 12 to determine the annual loss of dependency. The annual loss of dependency is multiplied by the multiplier according to the age of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to pass any order it considers fit and proper in the interest of justice or to do complete justice between the parties." (Emphasis Supplied) Conclusion 151. Article 227 of the Constitution empowers the High Court with the superintendence over all 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. Article 235 of the Constitution empowers the High Court with respect to the posting and promotion of Judicial Officers. 152. 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 482 vests inherent power in the High Court to make s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 161. Section 357 CrPC is intended to reassure the victim that he/she is not forgotten in the criminal justice system. 162. Section 357 CrPC is a constructive approach to crimes. It is indeed a step forward in our criminal justice system. 163. The power under Section 357 CrPC is not ancillary to other sentences but in addition thereto. 164. The power under Section 357 CrPC is to be exercised liberally to meet the ends of justice in a better way. 165. Section 357 CrPC confers a duty on the Court to apply its mind on the question of compensation in every criminal case. 166. The word "may" in Section 357(3) CrPC means "shall" and therefore, Section 357 CrPC is mandatory. 167. The Supreme Court in Ankush Shivaji Gaikwad (supra) has given dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused in the format of Annexure-A and the documents filed with the affidavit to DSLSA. 176. Upon receipt of the judgment and the affidavit of the accused, DSLSA shall conduct a summary inquiry to compute the loss suffered by the victims and the paying capacity of the accused and shall submit the Victim Impact Report containing their recommendations to the Court within 30 days. Delhi State Legal Services Authority shall seek the necessary assistance in conducting the inquiry from SDM concerned, SHO concerned and/or prosecution who shall provide the necessary assistance upon being requested. 177. 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. The Court shall direct the accused to deposit the compensation with DSLSA whereupon DSLSA shall disburse the amount to the victims according to their Scheme. 178. If the accused does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by DSLSA in every criminal case are implemented w.e.f. 01st January, 2021. 183. Mr. Rahul Mehra, ld. Standing Counsel shall take up the matter with Government of NCT of Delhi to ensure the compliance of this direction within the stipulated time. 184. List for reporting compliance and further directions on 25th February, 2021. 185. This Court appreciates the valuable and effective assistance rendered by Mr. Kanhaiya Singhal, Advocate assisted by Ms. Pratiksha Tripathi, Advocate; Mr. Rahul Mehra, ld. Standing Counsel assisted by Ms. Aashaa Tiwari, ld. APP and Mr. Chaitanya Gosain, Advocate; Mr. Rajshekhar Rao, Advocate assisted by Ms. Aanchal Tikmani and Mr. Shreeyash Lalit, Advocates for Delhi High Court; Mr. Vikas Pahwa, ld. Amicus Curiae assisted by Mr. Sumer Singh Boparai, Mr. Varun Bhati and Ms. Raavi Sharma, Advocates; Prof. G.S. Bajpai, Professor of Criminology & Criminal Justice, National Law University, Delhi as amicus curiae assisted by Mr. Neeraj Tiwari, Assistant Professor of Law, Mr. Ankit Kaushik, Research Associate, Mr. G. Arudhra Rao and Ms. Shelal Lodhi Rajput; Mr. Kanwal Jeet Arora, Member Secretary, DSLSA; Mr. Akshay Chowdhary and Ms. Anjali Agrawal, Law Researc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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