Theories of compensation in criminal law

 Prakhar Maheshwari, West Bengal National University of Juridical Sciences

Editor’s note:  Offences against the State fall under the domain of criminal law. Relief is usually granted, in criminal cases, by punishment of the offender, unlike civil cases, where relief may take the form of injunction, compensation and/or punishment. This paper examines why this distinction is drawn, and why compensation is not preferred in a criminal offence, despite it involving damage (for example, theft). Restitution was not identified as a right for the victim in such a case until 1973, where right to compensation was recognized. The effect of this provision, however, is cautious, erratic, and finds no complimentary provision in IPC, making it crucial to examine the applicability, if any, of compensation in criminal law.

The Hon’ble Supreme Court has held compensation in a long-drawn criminal case to be appropriate additional relief. Any amount could be awarded, yet lower courts exercised this power sparingly, and the compensation awarded was often not enough. These problems were addressed by the 2008 amendment, which enables the Court to direct the State to award compensation. Jurisprudence has expanded in order to grant compensation in cases of violation of a constitutional rights, medical negligence, rape, custodial torture, etc. This saves the victim from the agony of second suit, this time civil in nature, in order to seek compensation for the same wrong.


Offences committed by individuals, companies, etc. are classified under various laws according to the nature of the offence. For example, offences against private rights come under civil laws and offences against the state come under the criminal law. When an offence is proven by the appropriate court, the victim or the sufferer gets relief from the court by way of either by compensation, injunction and action or by punishment of the offender. Usually, compensation and injunction is given in the case where damages to private rights are caused like in torts or any civil law and punishment is awarded to the offender with or without fine under criminal law. However, there is no clear distinction as to why compensation should not be awarded in criminal cases as well. Injury to the rights of a person are damaged even in a criminal case, for example, in the case of theft, a right of a person to his property gets damaged as the property goes out of his possession. But the right of a victim to a crime to restitution has not yet been identified in the statute.[i] However, it is not like that there aren’t any provisions at all for compensation to the victims. It was first recognised under the Criminal Procedure Code of 1898, but was of negligible value as it could only be granted in cases where a lump material sentence of fine was imposed and was also restricted to only the actual amount of fine appreciated.[ii] This however changed with section 357(3) of the Criminal Procedure Code 1973, where compensating the victims of crime was recognised even when the accused is not asked to pay the fine.[iii] But this provision too is invoked by the courts very cautiously and erratically.[iv] Also, no provisions have been incorporated under the Indian Penal Code to award compensation to the victims of such offences. With the introduction of new studies like ‘Victimology’ it has become important to analyse the importance of compensation in criminal law and the applicability.

This project aims to cover the scope of compensation under criminal acts like injury to constitutional rights, medical negligence and rape. Also, applicability is limited to India and other countries are not discussed in detail.

This project also aims to answer the research question: The importance of compensation in Criminal Law and whether compensation be awarded to victims of crimes with a better frequency and not sparingly?


Compensation under criminal law

The theory of compensation in criminal law is mainly about compensation to the victim of a crime. A victim to a crime is one who has suffered any loss because of some act or omission of the accused. The victim not only suffers physical injuries but also psychological and financial hardships too. The plight of a victim is only made worse by lengthy hearings and tedious proceedings of courts and improper conduct of the police. The victim is literally traumatised again in the process of seeking justice for the first injury. The legal heirs/guardians of the victim too come in the same definition.

In the case of Hari Singh v. Sukhbir Singh, the Supreme Court held, “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.”[v]

The law makers made provisions in the Criminal Procedure Code, 1973 under Section 357(3) to enable the Courts to award any amount of compensation to the victims of a crime. This was depicted in the landmark case of Hari Kisan[vi] where the Supreme Court had awarded compensation as punishment, of Rs. 50,000. Not only this, the lower courts were asked and advised to “exercise the power of awarding compensation to the victims of offences in such a liberal way that the victims may not have to rush to the civil courts”[vii]

In the case where the appellant was illegally kept captive for a period of 6 years in an asylum even though he was proved to be sane. In this case, the apex court ordered the State to compensate the appellant by Rs. 15000.

A bench of justices T S Thakur and Gyan Sudha Misra said that “Section 357 Criminal Procedure Code (CrPC) confers a duty on the Court to apply its mind to the question of compensation in every criminal case. It necessarily follows that the Court must disclose that it has applied its mind to this question in every criminal case”[viii]

However, the lower courts have till now given compensation very rarely and the use of this provision has been made to the minimal, when the accused get acquitted of charge on benefit of doubt.[ix]

Sometimes, the compensation given to the victim under the section 357 of the Criminal Procedure Code is not enough for him to rehabilitate. Hence the Code was amended in 2008 on the recommendations of Law Commission and a new section, section 357A came into existence. This section gives powers to Courts to direct the State to make schemes and hence award compensations to victims.[x]

Compensation related to Constitutional Injuries

A constitutional solution to fill the gap in the legal right to compensation in the monetary way for the abuse of the many human rights has been found by the apex courts. The Apex Court in the case Rudal Sah v. State of Bihar[xi] for the first time laid down the principle that compensation can be given in the cases where any fundamental right of an individual has been injured and that the upper courts have the authority to do so “through the exercise of writ jurisdiction and evolved the principle of compensatory justice in the annals of human rights jurisprudence.”[xii]

We can clearly see that monetary compensation had been made in cases where an individual’s legal rights have been damaged. Even though there isn’t a statute defining such a claim, the courts have exercised this power wherever they deemed fit. If a person’s fundamental right is violated or where a writ petition is not generated by the court itself, the said person’s right to compensation comes into effect and he should be compensated adequately in such cases.

In Sebastain v. Union of India[xiii], “on account of failure of Government to produce in habeas corpus petition filed by wives, apex court awarded cost of Rs. 1 lakh to be given to wife of each of detenne.”[xiv]

Compensation related to Medical Negligence

As the world progresses, more and more people get aware of their surroundings as well as their rights. People in today’s world know that there are punishments and compensations awarded for a professional negligence, like medical negligence. The services where special skill or knowledge is required, people doing those services are expected to be aware of the consequences of their application of skills. Hence professionals like doctors and architects need to be very careful with dealing their patients or clients. The practicing of medicine by a non-MBBS or not taking proper and reasonable care leads to medical negligence.

Courts across the country have awarded compensation for medical negligence side by side punishing the accused for Section 304-A of the Indian Penal Code. In the case of Dr. Suresh Gupta v. Govt. of NCT of Delhi[xv], the decision of the court confirmed the liability of the accused under civil as well as criminal law. The bench said that if the patient dies due to the negligence of the doctor, the doctor can be tried for compensation under civil law as well for punishment under criminal law, if the degree of negligence is grave and unpardonable and that the negligence has a very straightforward effect on the health of the patient, resulting in his death. “Thus a doctor cannot be held criminally responsible for patient’s death unless his negligence or incompetence showed such disregard for life and safety of his patient as to amount to a crime against the State.”[xvi]

In another case of wrong treatment, Poonam Verma v. Ashwin Patel[xvii], a doctor registered as a medical practitioner in Homoeopathy only, prescribed an allopathic medicine to his patient. As a result of this negligence, the patient died. The court held the doctor to be guilty and was made liable to compensate the wife of the patient for the death of her husband as the doctor was allowed to practice only homoeopathy and not any other branch of medicine. The negligent act of the doctor clearly resulted in the death of the patient.[xviii]

In a very recent case Balram Prasad v. Kunal Saha, where doctors from a leading hospital were accused of negligence in treating the complainant’s wife, Anuradha Saha, for a fatal and major skin disease TEN. The doctors showed grave negligence in handling a patient of such a dangerous disorder which resulted in her death. The Court held that a high negligence was shown by the doctors and ordered them to pay a record Rs. 6.08 crores with a 6% interest from the date of application which amounted to Rs. 11 crores. The compensation was awarded keeping in mind the loss of income of the deceased, travel expenses, mental agony, loss of consortium and cost of litigation.[xix]

However, it is to be noted that compensation has been awarded for separate civil suits and not in the same criminal suit. It would hence make the life of the victim or the legal guardian/heir of the victim if the compensation suit is included in the criminal case against the accused.

Compensation related to Rape

The victim of rape has to suffer from many hardships like mental shock, lost income due to pregnancy and costs incurred during childbirth because of the offence. Also, in the present Indian society, a raped victim is looked down upon even though she is the victim and not the offender. During a rape trial, if the accused is just punished or asked to pay fine, the judgement does not favour the victim as her position is not restored. Hence it becomes extremely important to compensate such a victim.

A women’s right to compensation originates from Article 21 of the Indian Constitution which talks about right to life and personal liberty. The Supreme Court held that a woman can be compensated even in the middle stages of the trial as well as at the end of the trial. The Supreme Court even suggested the establishment of criminal injuries compensation Board under Article 38(1) of the Constitution of India whose function would have been to compensate such victims and provide them relief. However, no such board has been formed.[xx]

In the landmark case of DK Basu v. State of West Bengal, the Supreme Court held that a victim of custodial right has every right to be compensated as her Right to life has been breached by the officer of the State.[xxi]

In another case, the Supreme Court held that the session’s court too has the power to award compensation to the victim even if the trial has not been completed. In fact, in the case State of Maharashtra v. Madhukar N. Mardikar, Supreme court held that “even a prostitute has a right to privacy and no person can rape her just because she is a woman of easy virtue.”[xxii]


When a crime is committed against a person, the victim loses out a lot apart from incurring damages and injuries. The work of a judiciary should not only be to punish the guilty but also compensate the victim as even if the accused is punished, the victim’s loss is not compensated. The compensation given should at least try to put the victim in a state in which he was before. It is not like victims of crime can never ask for compensation as such a prayer is available under civil laws, but filing two different suits for the same offence in two different courts. The proceedings for one suit are most of the times is agonizing, that such a procedure of filing different suits only gives the victim a second traumatisation.

The idea behind providing compensation is legal as well as humanitarian. The inability to protect the person by the State makes it legally obligatory for the State to compensate him. The victim goes through such pain and many times permanent loss of income only makes it logical for him to be compensated.

In cases where a person dies or is sent into a vegetative state, compensation should be very high as many times, the victim himself is the sole bread earner of the family and hence his injuries affect the life of his family too. In such cases, if the accused is only imprisoned or asked to pay a small fine, no good happens to either the accused or the victim’s family.

In the Indian society of the 21st century, many people want their brides to be “pure” virgins. A victim of rape in such cases not only loses out on the opportunity to marry into an otherwise decent family but is also discriminated upon for no fault of hers. It is often said that the most prised possession of a woman is her dignity and respect. In the society where people still have an old mindset, the life of such a woman only degrades. It only makes sense to compensate such a victim well apart from punishing the accused.

Mental shock, loss of income and cost of litigation should be taken into consideration when coming out with compensation and the Courts should hence compensate the victims more frequently.


We come to the conclusion that compensation is not only required but is in fact a very important aspect of even criminal law and the courts should not use this sparingly but a little liberally. Of course they should be careful of not awarding too high a compensation and hence should be careful.

The government should take into consideration the suggestions of the Supreme Court and set up Compensation Boards to help the victims with financial issues. Prior to CrPC(Amendment) 2008, India lacked an all-inclusive legislation for compensation of victims. “Compassionate treatment of victims under the criminal justice system itself leads to the belief in the system which is enhanced by way of compensation programmes, independent of conviction of offenders”[xxiii]

“It is need less to point out that the whole legislative paradigm coupled with lack of judicial determination has exposed numerous flaws of the present legal system about the compensation therefore there is need for revamping the whole legal system once. The mandatory changes that are needed are as follows:

  • The suggestion given by the law commission of India in its 42nd report on Indian Penal Code must be taken in to consideration and it would be better if the legislature also take in to account the separate note of Justice R.L. Narsimha a member of the commission.

  • The law must also provide recording of reason for not providing or providing the compensation as we have in the case of death sentence in Cr.P.C.

  • The law must also provide for institutional set up as we have in western countries.

  • If possible it would be better to give the compensation as a right to victim.”[xxiv]

Edited by Neerja Gurnani

[i] S. Murlidharan, ‘Right of Victims in the Indian Criminal Justice System’ [2005] NHRC 1,3.

[ii] ibid.

[iii] ibid.

[iv] ibid.

[v] Hari Singh Vs. Sukhbir Singh [1988] 4 SCC 551.

[vi] Hari Kisan [1998] AIR 2127 SC.

[vii] ibid.

[viii] Deccan Herald, ‘Victims in criminal case be awarded compensation: SC’ ( 2013) <> accessed 14 November 13.

[ix] Deepak Bade, ‘CONCEPT OF VICTIMOLOGY IN INDIA’ ( 2013) <> accessed 14 November 11.

[x] Deccan Herald, ‘Victims in criminal case be awarded compensation: SC’ ( 2013) <> accessed 14 November 13.

[xi] Rudul Sah v. State of Bihar [1983] AIR 1086 SC.

[xii] ibid.

[xiii] Sebastain v. Union of India [1984] AIR 1826 SC.

[xiv] ibid.

[xv] Dr. Suresh Gupta v. Govt. of NCT of Delhi [2004] 6 Scale 432.

[xvi] N12.

[xvii] Poonam Verma v. Ashwin Patel [1996] 4 SCC 332.

[xviii] ibid.

[xix] Balram Prasad v. Kunal Saha CIVIL APPEAL NO.2867 OF 2012

[xx] N8.

[xxi] DK Basu v. State of West Bengal [1997] AIR 610 SC

[xxii] Maharashtra v. Madhukar N. Mardikar [1991] I SCC 57.

[xxiii] Bhumika Sharma, ‘Compensation to Victims of Crime Under Criminal Law’ ( 2011) <> accessed 14 November 13

[xxiv] Abhishek Anand, ‘Compensation to the Victim of Crime: Assessing Legislative Frame Work and Role of Indian Courts’ ( 2012) <> accessed 14 November 13

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