Courts hardly use provision to make guilty pay up

Victims of crime or rash and negligent acts are often so consumed with rage that they cry for the blood of the guilty and fail to rebuild their lives. The judges in criminal courts also suffer from tunnel vision and focus on the sentence to be given to the offender. If they are sensitive, they can award compensation to the victim while sentencing the lawbreaker. But it is rarely done, and the Supreme Court has often wondered why.

The issue came up before the Supreme Court last month in a case of bounced cheque (K A Abbas vs Sabu Joseph). The person who issued the cheque without sufficient balance in the bank account was held guilty under Section 138 of the Negotiable Instruments Act. He was sentenced to simple imprisonment for one year. In addition, the magistrate directed him to pay Rs 5 lakh as compensation to the payee. This power is conferred on the magistrate under Section 357(3) of the Criminal Procedure Code. The convict appealed to the Supreme Court but did not succeed.

The magistrate in this case used the power bestowed on criminal courts but scarcely used. The authority has been there since 1955 when the code was amended. However, the usual sentence for a crime is imprisonment and a meagre fine. In the Bhopal gas tragedy case, the guilty were given the same kind of sentence. But instead of a fine, the court could order payment of compensation to the victims. Though this may not be practical in a mass disaster case, in a large number of cases, an equitable sentence would be short imprisonment plus heavy compensation to the victim of the crime.

The relevant rule says that "when a court imposes 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, such amount as may be specified in the order to the person who has suffered any loss or injury".

The joint select committee, which recommended this amendment to the criminal procedure, argued thus for this provision: "When death has been caused to a person, it is but proper that his heirs and dependents should be compensated in suitable cases by the person responsible for it. This will result in settling the claim once for all by doing away with the need for further claim to a civil court and avoid needless worry and expense to both sides."

Lawmakers have left the amount of compensation open to variations. Though there is a limit on the power of magistrates to impose fine, sometimes limited to a few thousand rupees, if they prefer to order compensation, there is no ceiling on the amount. They can go by the nature and degree of injuries caused by the crime and the capacity of the offender to pay. A top executive directly in charge of a factory can be fastened with heavy liability if noxious gas or effluents escape from the unit and cause death and destruction in the neighbourhood.

At least in two leading judgments, the Supreme Court has called upon criminal courts in the country to make "liberal use" of the provision to help the victims restart their lives. In the Hari Singh vs Sukhbir Singh (1989) case, the court stated that "the quantum of compensation may be determined by taking into account the nature of the crime, the justness of claim and the ability of the accused person to pay. If there are more than one accused, they may be asked to pay in equal terms unless their capacity to pay varies considerably". The same sentiments were reiterated in the Suganthi Suresh Kumar vs Jagdeeshan (2002) case.

In the latest case of invalid cheque, the Supreme Court further explained: "Sometimes the situation becomes such that no purpose is served by keeping a person behind the bars. Instead, directing the accused to pay an amount of compensation to the victim or the affected party can ensure delivery of total justice."

The jails in this country are overflowing, with each one taking more than twice its original capacity. Imprisonment in such inhuman conditions would be counterproductive. The government recently released thousands of prisoners, mainly "under trials", because the prisons just could not take them. Therefore, the courts should exercise their discretionary powers to find alternative sentences which would help the victims and society in general. Criminal courts should take the call of the Supreme Court and impose shorter jail terms and heavier compensation which would help the victims of crime.

In several judgments in the past, the Supreme Court had recommended open jails, yoga and community service to reform criminals. Recently, the Delhi High Court imposed a quota of free legal aid cases on the lawyers who went on illegal strike. Instead of blindly sending convicts to long jail terms, it will be more constructive if they are ordered to pay back what they owe to the victims and society.