Kerala High Court: “CrPC Section 357A (4) is a substantive provision”

Dec28,2020 #kerala HC
kerala high court law insider in
kerala high court law insider in

Anushka Mansharamani

The Kerala High Court held “that the provisions in Section 357A(1)(4)&(5) Code of Criminal Procedure are substantive in character and the victims under Section 357A(4) of the Code of Criminal Procedure are entitled to claim compensation for incidents that occurred even prior to the coming into force of the said provision.”


Sri. Sivadas passed away in an accident and the crime was registered by the Police, however, the accused was not traceable and therefore the trial did not take place.

The legal heirs of Sri. Sivadas applied for compensation from the state under Section 357A (4) Code of Criminal Procedure.

An investigation was conducted as per Section 357A (4) and the state of Kerala was directed to pay Rupees three lakh three thousand as compensation.

The State of Kerala challenged this order before the Kerala High Court.


The issue raised before the court was whether the victims of the crime that took place before 31st December 2009 be entitled to claim compensation under Section 357 (A)(4) of the Code of Criminal Procedure.

The court, in this judgement, held that “the advent of the philosophy of victim compensation, with its avowed purpose not to award damages analogous to those in cases of tortious liability, but to give solace, by way of compensation out of the public purse, for the injury sustained, whether the offender had been brought to trial or not, a new stakeholder, in the criminal law, was ushered in.”

The court further observed that the state has certain responsibilities to take up during such an incident. The court further relied on the definition of victim compensation scheme under Section 357A (4) Code of Criminal Procedure which states that “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 for award of compensation.”

The court lastly stated that prospective benefit should be given after taking into consideration the reckoning of an antecedent fact.

The court concluded that the presence of prospective benefit does not make the provision retrospective in operation.

Therefore, the case was dismissed, and the said clause did not apply in the instant case as the court concluded that “benefit to victims under Section 357A(4) Code of Criminal Procedure for crimes that occurred prior to 31.12.2009, the statutory provision is not given retrospective effect, and instead a prospective benefit is given based on an antecedent fact.”


The petitioners relied on an amended provision that was brought into effect on 31st December 2009 and stated that it was wholly unfair and contrary to the statutory prescription.

It was further contended that “Section 357A(4) Code of Criminal Procedure cannot be given a retrospective operation as the financial implication of such an interpretation would be so enormous upon the Government, that it will crumble the economic planning of the State.”

The respondents argued that the provision applies to past occurrences of crime also and that the concept of Section 357A is akin to a joint tortfeasor under the civil law, and the legislative attempt by bringing in Section 357A Code of Criminal Procedure.

It was further argued that “it is a right that was always inherent under Article 21 of the Constitution of India. As a right that was always inherent in a victim, Section 357A(4)&(5) Code of Criminal Procedure only created a mode of providing compensation, and hence the same has retrospective application.”



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