In Delhi High Court, a setback for victims of crime

The gains overturned

The discourse on victim justice in India received a spur when through Karan (2020), the Delhi HC laid down a detailed procedure upon an order of conviction: The trial courts shall direct the accused to file an affidavit of his assets, incomes and liabilities within 10 days; direct the state to disclose the expenses incurred on prosecution within thirty days, and require the Delhi State Legal Services Authority (DSLSA) to conduct a summary inquiry computing the losses suffered by the victim and paying capacity of the accused and submit a Victim Impact Report (VIR) to the trial court. The trial court would then consider the VIR, award compensation where the accused had a capacity to pay and direct the accused to deposit the compensation with DSLSA for disbursement to the victim. Where the accused did not have the capacity to pay, the trial court was required to invoke s. 357A, CrPC, and recommend the award of compensation by DSLSA from the Victim Compensation Fund.

Need for the Karan Directives

The explication of a detailed procedure stemmed from two major lacunae in s. 357 which, in practice, deterred its application by trial courts.

Firstly, the absence of any objective criteria detailing the impact of the crime on the victims for consideration in the determination of compensation discouraged the judiciary from granting compensation without engaging in a laborious exercise that stressed the overburdened courts.

Secondly, the lack of measures to determine the paying capacity of the accused deterred the courts from coming to a “just” and “equitable” quantum of compensation. It is pertinent to note that the Karan directives didn’t stem from just pragmatic considerations, but were also rooted in the normative requirements imposed by the Supreme Court in Ankush Shivaji Gaikwad v. State of Maharashtra (2013) wherein the SC observed that the courts had been oblivious and ignorant of s. 357 despite it being a statutory provision which cast a duty to apply their judicial mind on the question of compensation in every criminal case.

Considerations in overruling Karan

The primary consideration of the Delhi HC in Saif Ali is premised on three rationales.

One, despite the time-bound nature of the procedure laid down in Karan (2020) the lack of adherence to the timelines by the functionaries involved delayed the sentence orders, thereby frustrating the right of the convict to appeal, which in itself amounted to a derogation of their right to speedy justice. Two, the HC in Karan could not have delegated the task of recommending the quantum of compensation to DSLSA as the same is primarily a judicial function by “borrowing a mechanism envisaged under s. 357A.” Three, the requirement of an affidavit declaring assets and liabilities from the accused amounts to self-incrimination.

Flaws in Saif Ali

The Court’s decision in Saif Ali (2025) is based on faulty premises which stem from an incorrect appreciation of Karan (2020).

First, the judicial task of determination of compensation is not impinged in as much as the task of the DSLSA was non-binding and recommendatory in nature. The trial courts retained the discretion to either accept or reject such recommendations upon an application of judicial mind. Second, the mechanism envisaged under Karan was not borrowed from the statutory procedure laid down in s. 357A. Rather, it finds a genesis in earlier judgments of the Delhi HC for determining the paying capacity and in the established procedure for determining compensation for victims in motor vehicles accidents cases (including the multiplier method).

Third, in concluding that the Karan Directives could not have asked for a statement of assets and liabilities through an affidavit on the ground that the same may amount to self-incrimination is fallacious. The court reasoned that such an affidavit could be used by investigative agencies such as ED and therefore may amount to self-incrimination. Questions of self-incrimination, however, cannot arise post-conviction and the right against self-incrimination applies only where a person is “accused” of an offence. Further, the Delhi HCs direction that the same can instead be elicited from the SHO/IO and the accused (but not on affidavit) will delay both the award of compensation as well as order of sentence in as much as the verification of the information supplied by the accused by an overburdened and understaffed Court is itself likely to be time-consuming.

The pragmatic consideration of the court regarding delay in justice to the convict owing to the “time-consuming” procedure, in essence, turns a blind eye to the normative requirements of the victims of crime. This leaves the courts to grapple, without any assistance, with the issue of whether compensation has to be granted in a particular case and, if so, what its quantum should be. An issue that more often than not went unaddressed prior to Karan (2020).

Finally, while the decision does little to cure the lacunae in s. 357, which deterred its application, it also fails to take into account decades of victimological jurisprudence emerging from the SC. The apex court in Maru Ram (1981) had opined that “victimology must find fulfilment… by lessening the loss of the forlorn.” This consistent stand can be seen in Jagjeet Singh (2022) that grants “unbridled participatory rights” to victims. In disregarding a mechanism which meticulously accounted for calculation of the impact of the crime on victims and replacing it with a vague direction to trial courts to take a “victim-centric approach,” the Delhi HC has disenfranchised victims as rightful participants in the criminal justice system.

Bajpai is Vice-Chancellor and Kaushik is an Assistant Professor of Law at National Law University Delhi. Views are personal