Allowed

Farah W/O. Naim Chaus v. the State of Maharashtra and Others

Bombay HC13 Feb 2019WP/653/2018

Case brief

AI extract

What is this about?

This court allowed a criminal writ petition filed by a rape victim who was denied compensation under the Manodhairya Scheme due to her case occurring before the scheme's cut-off date. The court directed the District Legal Services Authority to grant ₹2,00,000 compensation.

What did the court decide?

The impugned communication rejecting compensation was quashed; the District Legal Services Authority directed to pay Rs. 2,00,000 to the petitioner.

Farah W/O. Naim Chaus Vs the State of… — Pension and Retirement Benefits | Bombay HC (2019)

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653.18WP

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO.653 OF 2018

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Farah W/o Naim Chaus
Age-25 years, Occ-Household,
R/o Damgan Pura, Barabhai Galli,
Ravivar Peth, Ambajogai,
Tq. Ambajogai, Dist. Beed.

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PETITIONER

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VERSUS

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1. The State of Maharashtra, Through : Secretary Women & Child Development Department, Mantralaya, Mumbai-32

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2. The Collector, Beed, Dist. Beed.

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3. District Women & Child Development Officer, Beed, District Beed.

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RESPONDENTS

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...

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Mr. P.P. Khandagale, Advocate for the Petitioner.
Mr. S.Y. Mahajan, A.P.P. for Respondent Nos.1 to 3.

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CORAM:S.S.SHINDE &

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R.G. AVACHAT,JJ.

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RESERVED ON : 06.02.2019 PRONOUNCED ON: 13.02.2019

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JUDGMENT (Per S.S.Shinde, J.):

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Rule. Rule made returnable forthwith

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and heard finally with the consent of the
parties.

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2.Being aggrieved by the impugned
communication dated 23rd May, 2017 (Exhibit-
C/Page 51) issued by Respondent No.3,
rejecting the application of the petitioner,
praying therein to grant compensation to her
being a convict of rape under “Manodharya
Scheme”, the present Petition is filed.

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3.It is the case of the petitioner
that on 6th September, 2012 in between 4.30
a.m. to 5.00 a.m., Amjad Kathalu Qureshi and
Manjurali Layakali Shah entered in her house
and committed rape on her against her will.
During the course of said sexual assault, the
petitioner was also assaulted by those
accused. The accused were tried and convicted
by the Additional Sessions Judge, Ambajogai
for an offence punishable under Section 376
of the Indian Penal Code and for other
offences under the Indian Penal Code.

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4.It is the case of the petitioner

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that merely because the date of incident is
prior to the date of issuance of Government
Resolution dated 21st October, 2013, issued by
the Women and Child Welfare Department, her
application has been rejected.

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5.Learned counsel appearing for the

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petitioner submits that the said scheme is
providing financial aid to the victim of rape
so as to bring out the victim from the shock
of rape. It is submitted that the husband of
the petitioner is working as labourer and one
child is dependent upon her. Due to the said
incident of rape, her reputation in the
society has been shaken and family is not in
a position to pull on financially. It is
submitted that the Division Bench (Coram :
S.S. Shinde and V.K. Jadhav, JJ) in the case

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of Bhagwan S/o Digamber Devde and others V/s

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The State of Maharashtra and others) in
Criminal Writ Petition No.1105 of 2015, in
similar facts situation has allowed the
Petition and directed the concerned State
Authorities to grant compensation to the
petitioner therein. Learned counsel also
invites our attention to the pleadings in the
Petition, grounds taken therein, rejoinder
affidavit and submits that the Petition
deserves to be allowed.

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6.On the other hand learned A.P.P.
appearing for the Respondent-State and its
officials invites our attention to the
affidavit in reply and the Government
Resolution dated 21stOctober, 2013 and
subsequent Government Resolution dated 1st
August, 2017, and submits that, it is made
clear in the said Government Resolution that

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if the incident had taken place prior to
bringing into force the Government Resolution
dated 21st October, 2013, in that case, the
victim will not be entitled for compensation.
It is submitted that the State Government has

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introduced the new revised “Manodhairya
Scheme” and as per the said scheme, all
powers to decide the application of the
victim has been vested with the District
Legal Services Authority. It is submitted
that the cut-off date i.e. 2nd October, 2013,
which is mentioned in the first Government
Resolution dated 21st October, 2013, is not

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yet removed and it is under active
consideration of the State Government to
remove such cut-off date.

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7.We have given careful consideration

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to the submissions advanced by learned

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counsel appearing for the petitioner and

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learnedA.P.P.appearingforthe

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respondent/State. With their able assistance,
we have perused the pleadings in the
Petition, grounds taken therein and annexures
thereto, reply filed on behalf of Respondent
Nos.1 to 3, rejoinder filed by the petitioner

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and all the relevant Government Resolutions,
which are placed on record.

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8.Indisputably,theGovernment

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Resolution dated 21st October, 2013 has been
brought into force so as to provide
compensation keeping in view the provisions
of Section 357 of the Code of Criminal
Procedure. The Division Bench of this Court
(Coram : S.S. Shinde and V.K. Jadhav, JJ) in
the case of Bhagwan S/o Digamber Devde and
others V/s The State of Maharashtra and
others) in Criminal Writ Petition No.1105 of
2015, while considering the similar facts

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situation, in paras 7 to 12 held as under:-

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“7.By clause 28 of the Code of Criminal
Procedure (Amendment) Act, 2008 (5 of 2009)
(with effect from 31.12.2009), a new
Section 357-A has been inserted in order to
provide for the State Government to
prepare, in co-ordination with the Central
Government, a scheme called “victim
compensation scheme” for the purpose of
compensation to the victim or his/her
dependents who have suffered loss or injury
as a result of the crime. Section 357-A is
reproduced herein below:

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“357-A.Victimcompensation
scheme.-(1)EveryState
Government in co-ordination with
the Central Government shall
prepare a scheme for providing
funds for the purpose of
compensation to the victim or his
dependents who have suffered loss
or injury as a result of the crime
and who require rehabilitation.

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(2) Whenever a recommendation is

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madebytheCourtfor
compensation, the District Legal
Service Authority or the State
Legal Service Authority, as the
case may be, shall decide the
quantum of compensation to be
awarded under the scheme referred
to in sub-section (1).

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(3) If the trial Court, at the
conclusion of the trial, is
satisfied, that the compensation
awarded under section 357 is not
adequate for such rehabilitation,
or where the cases end in
acquittal or discharge and the
victim has to be rehabilitated, it
may make recommendation for
compensation.

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(4) Where the offender is not
traced or identified, but the
victim is identified, and where no
trial takes place, the victim or
his dependents may make an
application to the State or the
District Legal Services Authority

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for award of compensation.

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(5)Onreceiptofsuch
recommendationsoronthe
application under sub-section (4),
the State or the District Legal
Services Authority shall, after
dueenquiryawardadequate
compensation by completing the
enquiry within two months.

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(6) The State of the District
Legal Services Authority, as the
case may be, to alleviate the
suffering of the victim, may order
for immediate first-aid facility
or medical benefits to be made
available free of cost on the
certificate of the police officer
not below the rank of the officer
in charge of the police station or

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a Magistrate of the area
concerned, or any other interim
reliefastheappropriate
authority deems fit.”

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8.In the case of Mohd. Haroon and
Others vs. Union of India and Another,
reported in (2014) 5 SCC 252, in cases of
crimes against women, the Supreme Court

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hasexpressedthenecessityof
formulation and implementation of the
policiestoupliftsocio-economic
conditions of women to curb gender
violence. By referring the provisions of
Section357-A,whichcasta
responsibility on the State Government to
formulate scheme for compensation to the
victims of crime in co-ordination with
the Central Government, the Supreme Court
has observed that no rigid formula can be
evolved as to have a uniform amount and
it should vary in facts and circumstances
ofeachcase.Nevertheless,the
obligation of the State does not
extinguish on payment of compensation,
rehabilitation of victim is also of
paramount importance. The mental trauma
that the victim suffers due to the
commission of such heinous crime (rape),
rehabilitation becomes a must in each and
every case.

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9.In the case of Laxmi vs. Union of
India and Others, reported in (2016) 3
SCC 669, the Supreme Court has held that
a minimum of Rs.3,00,000/- (Rupees three
lakhs only) shall be made available to
each victim of acid attack under Section

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653.18WP

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357-A, full medical assistance should be
provided to the victims of acid attack,
private hospitals should also provide
free medical treatment to such victims
and action may be taken against
hospital/clinic for refusal to treat
victims of acid attacks in contravention
of the provisions of Section 357-C of
the Code. The Supreme Court has also
observed that free medical treatment
shall not only imply physical treatment
to the victim of acid attack but also
availability of medicines, bed and food
in the concerned hospital.

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10.In the case of Tekan alias Tekram
vs. State of Madhya Pradesh (now
Chhattisgarh), reported in (2016) 4 SCC
461, where the victim was subjected to
sexual intercourse on the pretext of
marriage, the Supreme Court held that all
the States and Union Territories shall
make all endeavour to formulate a uniform
scheme for providing victim compensation
in respect of rape/sexual exploitation as
required under the law taking into
consideration the scheme framed by the
StateofGoaforrapevictim

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compensation.

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11.In the backdrop of the aforesaid
observations, the State of Maharashtra
has passed a Government Resolution dated
21.10.2013 for implementation of a scheme
named and titled as Manodhairya Yojna
with effect from 02.10.2013 for grant of
compensation to the rape victims,
sexually abused children and acid attack
victims. In the aforesaid Government
Resolution, for the purpose of grant of
compensation to the rape victims, it has
been decided to consider the definition
of 'rape' in terms of the provisions of
Section 375 of IPC and further made
applicable the provisions of Sections
376, 376(2), 376-A, 376-B, 376-C, 376-D
and 376-E of IPC and also made applicable
the provision of Sections 3, 4, 5 and 6
of the Protection of Children from Sexual
Offences Act, 2012 (POCSO) to consider
sexual assault on children. For the
purpose of acid attack victims, it has
been decided to consider the definition
of 'acid attack' in term of the
provisions of Sections 326-A and 326-B of
IPC. By the said G.R. dated 21.10.2013, a
fixed compensation has been determined
with regard to the categories as detailed

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above, alongwith provisions for free
medical treatment in Government Hospitals
and the State of Maharashtra has also
formed the District Criminal Injuries
Relief and Rehabilitation Board (for
short “District Board”) presided over by
the District Collector alongwith other
members including Civil Surgeon and
Government Pleader of the concerned
District etc. It has also been
specificallystatedinthesaid
Government Resolution dated 21.10.2013
that as soon as an F.I.R. is registered,
theconcernedpolicestation/
Investigating Officer has to inform about
the said registration of crime to the
District Board.

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12.IntermsoftheGovernment
Resolution dated 21.10.2013, petitioner
nos. 1 and 2 had filed an application
before the said District Board on
09.02.2015 for grant of compensation of
Rs.3,00,000/- in view of registration of
Crime No. M.Case 01/2014 at Osmanpura
PoliceStation,Aurangabad.By
communication dated 11/16th March, 2015,
the Member Secretary of the District
CriminalInjuriesReliefand

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Rehabilitation Board informed petitioner
no.1 herein that rape victims are
entitled for compensation in terms of the
G.R. dated 21.10.2013 only for the
incidents which have occurred on
02.10.2013 onwards and the said benefit
cannot be extended to the victims of rape
wherein the incident had taken place
prior to 02.10.2013. It has been
specificallycommunicatedtothe
petitioners that they are not entitled
for compensation under the said G.R. and
that the District Board has taken a
decision to that effect.”

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9.It is true that the first

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information report has been registered on 6th
September, 2012 with Ambajogai Police Station
for the offences punishable under Section
324, 376, 452 of the Indian Penal Code. The
Government Resolution dated 21st October, 2013
has been brought into force from the date of
issuance of said Government Resolution. By
way of said Government Resolution, the
benefits are extended to the convicts of

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rape. It is true that though the date of

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incident is prior to bringing into force such
Government Resolution, however, mental trauma
suffered by the petitioner is continuous
cause from the date of such incident, and
further same may continue throughout life of
the petitioner.

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10.It is also necessary to state that
though the date of incident is prior to
bringing into force the said Resolution,
nevertheless the trial had taken place after
introducing such resolution and accused has
been convicted under Section 376 of the
Indian Penal Code in the year 2017. When the
State Government has brought the aforesaid
Government Resolution with laudable object to
provide compensation to the victim of rape,

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on technical ground that the alleged offence
has taken place prior to issuance of the
Government Resolution, would be defeating the

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very object of bringing into force the said

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Government Resolution.

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11.As rightly submitted by learned
counsel appearing for the petitioner, in the
case of Bhagwan S/o Digamber Devde and others
V/s The State of Maharashtra and others,
cited supra, this Court has considered some
what similar facts situation and had arrived
at a conclusion to issue directions to the
Respondents to pay compensation to the victim
therein. It is true that the old cases should
not be reopened, however, if the trials are
concluded after bringing into force aforesaid
Government Resolution and the allegations in
the first information report have been proved
and to that effect the conviction is given to
the accused, in our considered opinion,
merely technically the incident had taken
place just one year before the introduction

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of the said Government Resolution, cannot be

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a ground to deny the compensation to the
petitioner when the petitioner has approached
to this Court stating therein that her
husband is labourer and there is one child
dependent upon them and due to loss of
reputation in the society, they are not able
to collect the adequate means for their
survival.

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12.In that view of the matter, in the
peculiar facts and circumstances of this
case, we are of the opinion that the ends of
justice would be met in case the directions
are issued to the District Legal Services
Authority to pay the compensation of
Rs.2,00,000/- (Rs. Two Lacs Only) to the
petitioner. Accordingly, we pass the
following order :-

653.18WP

ORDER

(i)Writ Petition is allowed. The impugned
communication dated 23rd May, 2017 (Exhibit-
C/Page 51) issued by Respondent No.3, is
quashed and set aside.

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(ii)We direct the District Legal Services
Authority, Beed to pay Rs.2,00,000/- (Rs.Two
Lacs) to the petitioner, as one time measure.

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(iii)We make it clear that the present
order is passed in the peculiar facts and
circumstances of this case, and the same may
not be cited as a precedent in other cases.

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10.Writ Petition stands disposed of
accordingly. Rule is made absolute in above
terms.

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(R.G. AVACHAT, J) (S.S.SHINDE, J)

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SGA

Farah W/O. Naim Chaus v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Farah W/O. Naim Chaus v. the State of Maharashtra and Others

Case brief

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