HC ordered West Bengal government to compensate trafficking survivor even before trial commences

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Calcutta High Court in its historic judgment on Monday, June 25, 2018, ordered West Bengal government to compensate a trafficking survivor even though the trial is yet to begin. The Court observed that legal proceedings took months and sometimes years to complete and denying compensation to the victim in the meantime, “would continue such violation and perpetrate gross inhumanity on the victim in question.”

Facts of the case

In January 2013, a 14-year-old girl was lured from her hometown in South 24 Parganas, West Bengal with the prospect of a lucrative job and was sold in a brothel in Pune, Maharashtra from where she was later rescued and brought back home. She was one of the many victims of child trafficking who were usually lured or kidnapped and sold in brothels across the country. According to Indian National Crime Records Bureau, there has been a steady influx of trafficking victims from West Bengal and in 2016 among the 8000 human trafficking cases, the majority were from West Bengal.

The victim in this particular case had filed for compensation through her lawyer under the West Bengal Victim Compensation Scheme, 2017 for 500,000 rupees for the physical injuries and mental anguish that she has suffered. The West Bengal Victim Compensation Scheme, 2017 framed under Section 357A of the Criminal Procedure Code, 1973 allows a victim to seek compensation under Clause 4. But the State Legal Services Authority had rejected her plea citing conditions i.e., a) the accused not being traced or identified; as well as b) trial not having commenced, which are required to be satisfied to entitle the writ petitioner for compensation under Section 357A read with the Scheme as aforesaid. The victim-petitioner then filed a petition at the Calcutta High Court through Advocate Kaushik Gupta and claimed for just compensation.

Court ruling

Justice Rajasekhar Mantha who presided over the case pointed out that the object and purpose of “the  Scheme of 2017 is inter alia that a victim of a serious crime especially a woman needs urgent and immediate attention and both physical and mental rehabilitation. Such rehabilitation from the nature of the scheme and Section 357A is not dependent on the pace on which either the investigation is conducted or the trial is carried on. If this be the object and purpose of the Scheme and Section 357A read as a whole, I cannot countenance the findings of the State Legal Services Authority in the impugned order that both the requirements i.e. accused not being traced or identified as well as the factum of trial not having commenced, need be satisfied.”

The Court further observed that the victim must be compensated under Section 357A as her fundamental rights under Article 21 (Right to life) have been violated. The High Court in its order categorically stated that “acquittal of the accused, ipso facto, does not mean that the incident of crime did not take place. The victim of the crime may require support, monetary and otherwise to mitigate the loss and injury suffered as a result of the crime. The victim may require rehabilitation.”

Impact of the judgment

Advocate Kaushik Gupta, who is representing the victim in this particular case provided clarity as to the impact of the verdict in this case. He remarked, “Justice Mantha’s order, in this case, is a landmark order as it shifts the concept of justice from the sole purpose of convicting the criminal, to compensatory justice.” Advocate Gupta stated that “when a case is registered under Immoral Traffic (Prevention) Act (ITPA) it takes a huge amount of time and resources to pursue an investigation. Therefore, the investigation carried out is often inadequate, as is the charge sheet. More often than not, this results in the acquittal of accused.”

But the verdict of the Calcutta High Court highlighted this predicament where it was held, “Article 38 of the Constitution obligates the State to render social justice to its citizens. Article 21 of the Constitution of India guaranteeing ‘Right to life’ encompasses within its fold, the ‘Right to live with dignity’. The criminal proceedings may result in acquittal of the accused. Disposal of such criminal proceedings with a particular result does not mean that, the incident of crime did not happen or that the victim is not entitled to or requires compensation.”

Monday’s verdict championed the cause of justice and paved the path for many such victims to seek compensation and will help in their rehabilitation as was pointed out by Ravi Kant, founder of anti-trafficking charity Shakti Vahini who stated their future course of action would be “to file applications for all the rescued victims as we rescue 200 to 250 trafficked girls every year who are from West Bengal.”

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