Judgment:
Smt. R.S. Dalvi, J.
These writ petitions arise upon letters of three prisoners who have been convicted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and are serving their sentences. They challenge the deduction of 50% of the wages earned by them which have been appropriated to the Common Victims Compensation Fund, which has been created under Section 36-A of the Prisons Act, 1894, as amended by the Prisons (Goa Amendment) Act, 2005 and the Rules framed there-under being the Goa Prisons Rules, 2006.
2. One Tommy Thomas who was convicted under the NDPS Act was allowed the entire of the wages earned by him, without deducting any amount towards the Common Victims Compensation Fund. Thereafter, another prisoner also convicted under the NDPS Act, Basudev Joshi, was not allowed the entire wages. Fifty per cent of his wages came to be deducted under the aforesaid provision of the Act and the Rules. An order came to be passed by N.A. Britto, J., as he then was, on 24th July, 2009, holding that the prisoners of the same class cannot be so discriminated. Consequently, the convict Basudev Joshi was directed to be paid the entire of his wages. The learned Judge, inter alia, observed that until the Inspector General of Prisons reconsiders the order dated 11th November, 2008 under which the contribution to the fund was to be made or it is successfully challenged, the prisoners convicted under the NDPS Act would be entitled to their entire wages.
3. Fortified by the said order, three prisoners who are the petitioners in the above writ petitions, came to write letters for being granted the entire of their wages or for being refunded 50% of the wages deducted by the prison authorities. These letters have been treated as writ petitions. The Inspector General of Prisons has passed another order dated 12th August, 2011, setting out the aforesaid section of the Prisoners Act, as also relevant Prisons Rules which make it obligatory for all prisoners to contribute 50% share of their wages to the Common Victims Compensation Fund. The order shows that there is no discrimination between the prisoners for making deductions or exempting them from deductions towards the Common Victims Compensation Fund and that all prisoners, including the prisoners convicted under the NDPS Act, would have victims who would be the society at large. Consequently, the earlier memorandum was withdrawn by the Inspector General of Prisons to apply prospectively. The said order dated 12th August, 2011 is not challenged.
4. The petitioners' contention is that the prison authorities must act as per the aforesaid Section 36-A and the relevant rules and that they have not acted in consonance therewith. The petitioners have, therefore, sought to enforce the aforesaid provisions by interpreting them.
5. It will be apposite to set out the aforesaid provisions. Section 36-A of the Prisons Act, 1894, as amended by the Prisons Act, 2005, runs thus :
œ36-A. Creation of fund for compensation.-
The prisoners shall be paid wages for the employment provided to them at such rate as may be prescribed from time to time. An amount of fifty per cent of the total amount of wages earned by the prisonerin a month shall be kept and deposited in a separate common fundwhich shall be exclusively used for the payment of compensation to the deserving victimsor his/her family of the offence the commission of which entailed the sentence of imprisonment to the prisoner.The account of fund shall be maintained by the Superintendent of Jail in such form and in such manner as may be prescribed. The rate of compensation to be paid to the victims or his/her family shall be fixed by a committee consisting of such persons as may be prescribed.?
6. Chapter XXI of the Prisons Rules framed under the aforesaid Act on 13th October, 2006 and published in the Official Gazette, Government of Goa (Extraordinary), is titled œCompensation to the Victim (or his family) of the Prisoner's Offence?. Rules 414 to 419, deal with the provisions under the chapter of compensation, the relevant parts of which run thus :
œCHAPTER XXI
Compensation to the Victim (or his Family) or Prisoner's Offence.
414. Common Victims Compensation Fund. - A fund known as œCommon Victims Compensation Fund? shall be created for jail from the part of wages earned by prisoners for the purpose of giving compensation to the deserving victim or his/her family of the prisoner's offence.
415. Constitution of Committee and its
meeting.- (1) ¦
(2) ¦
(3) ¦
(4) The amount of compensation shall be fixed by the Committee at its meetings as per instructions issued by the Government in this behalf, from time to time and reasons shall be recorded in writing by the Committee for fixing such compensation and arrange payment of compensation amount to the victim or to his family member, as the case may be. If there are more than one victim or his legal heirs, the Committee shall also determine distribution of compensation amount proportionately amongst the victims or their legal heirs, as the case may be.
(5) For determination of deserving victims as provided in section 36A of the Act, the Government shall issue instructions from time to time.
416. Management of wages and Common victims Compensation Fund. - (1) Fifty percent of the wages earned by a prisonerin a month, under the provisions of sub-rule (5) of rule 210 shall be deposited in the Common Victims Compensation Fund and the remaining fifty percent amount may be payable to the prisoner subject to deduction, if any.
(2) The amount received by the prisoners,as wages under these rules, shall be distributed in the following manner :-
(i) Fifty percent of the wages earned by the prisonersin a month shall be deposited in the Common Victims Compensation Fund. Any interest credited against the Common Victims Compensation Fund shall be added to the fund.
(ii) The fund shall be controlled and operated jointly by the Inspector General and the Superintendent.
(iii) The amount of Common Victims Compensation Fund shall be deposited in a personal joint deposit account opened in any Nationalized bank in the name of Inspector General and the Superintendent of the Jail concerned.
(iv) Such amount of compensation from the Common Victims Compensation Fund shall be paid once to a deserving victim of the offence and in the case of the death of the deserving victim, to the family member of the victim as decided by the Committee.
418. Payment to victim.- (1) ¦
(2) Subject to the provisions of rule 416, compensation shall be paid from the Common Victims Compensation Fund by way of a cheque signed by the Inspector general and the Superintendent jointly or in the case of payment made by remittances through Post Office, the postal money order receipt shall be kept with the voucher.?
7. The aforesaid provision in the Prisons Act made by way of amendment is with the object of considering the aspect of victimology. The State, as a welfare State, is jurisprudentially enjoined to consider and give due weightage to victimology. This would be victim protection, victim representation and victim rehabilitation. It is to the latter of the aforesaid ends that the common fund is sought to be created to compensate the victims. The compensation is to be paid to the victims of the offence committed by the prisoners. It is required to be paid by the prisoners. Consequently, the word œprisoners? must read as œall prisoners? or œevery prisoner?. If the victim is dead, it is to be paid to his/her family. It is to be paid once. It is to be paid after ascertaining the deservance of the victim.
8. The expression œvictim? is not defined in the Prisons Act. The definition of œvictim? in the Code of Criminal Procedure shall, therefore, have to be relied upon. The definition of œvictim? in Section 2(wa) of the Cr. P.C., has itself been provided in the Amending Act 5 of 2009, amending the Code of Criminal Procedure, 1973. This was also in aid of the doctrine of victimology. The victims, who have no voice or representation in our criminal justice system, were first given such right of representation in appeals to be filed against acquittal or conviction for a lesser offence or for imposing inadequate compensation under the proviso to section 372 of the Cr. P.C. 1973 in Chapter XXIX, relating to Appeals which itself was brought into force by the amending Act 5 of 2009. [see Balasaheb Rangnath Khade vs. The State of Maharashtra and ors., (Cri. Appeal No.991/2011) 2013 ALL MR (Cri) 1153 FB].
9. The œvictim? under the Cr. P.C. is defined as under:
œ'victim' means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression 'victim' includes his or her guardian or legal heirs?.
Consequently, to appeal against acquittal or to appeal an order of conviction for a lesser offence or to appeal the imposing of inadequate compensation, a person who has suffered loss or injury caused by reason of the act or omission of the accused would be a victim.
10. It is contended on behalf of the petitioners that the NDPS prisoners form a separate class, having no tangible victim relatable to them. It is argued that since there is no identifiable victim of any prisoner or accused who is convicted under the NDPS Act, the person who has suffered any loss or injury by reason of the act of the accused is not shown and hence, no person and upon his death, his/her legal representatives can claim to be a victim.
11. It may be mentioned that if this analogy is accepted, there would be no victim even of any offence under the Prevention of Corruption Act, 1988 (PC Act), just as much as the NDPS Act. It would be rather shallow and myopic for a Court to accept such a contention. It is the entire country which suffers economically and financially for the case of acts and omissions of corrupted persons. It is the society, at large, which would suffer, with kinetic effect, of the acts of addicted person or persons convicted under the NDPS Act. In the cases of NDPS convicts their own families also may have been victimized by their acts and omissions. It is well accepted that the offence under the NDPS Act is taken to be so serious as to require a strict minimum sentence and fine and in which provisions of bail are applied more stringently than the offences under the general criminal law. A similar analogy, therefore, must apply to who is victimised by such crime.
12. It may be mentioned that whereas in the case of an offence against an individual, be it murder, rape, dacoity or any other, the person who is victimized may be in the singular, in the case of offences under the NDPS Act, the P.C. Act, etc., the entire society and the country is victimized. It calls for national character to be uplifted, not individual appeasement, protection or shelter. The State would have a more uphill task in wiping off the effects of victimization to a large section of the society to provide them succour or relief by way of compensation. Consequently, the victims considered under the aforesaid provisions are not only specifically identifiable persons, being the person who has suffered the offence, but the society at large, including complainant or family members of such person.
13. Section 357 of the Cr. P.C. allows and enjoins the Court to grant compensation at the time of imposing of sentence, with or without fine. That, of course, is the compensation contemplated to be granted judicially. Aside from such a grant, a welfare State in the civilized world of today would be required to act for reformation of the prisoners and rehabilitation of victims. Various schemes may be taken up by the State to that end. Once such scheme is payment of compensation to victims from the wages earned by the prisoners. For that purpose, a separate fund has to be created. This fund is created by crediting 50% of the wages earned by all the prisoners, in addition to the compensation that may or may not have been granted by the Court at the time of sentencing the accused under Section 357 of the Cr. P.C.
14. It is the contention on behalf of the petitioners that the expression œvictim of his/her family of the prisoners offence?, the prisoner being in singular, would essentially show the direct connection between the victim and the prisoner and hence the victim must be identified for being paid the compensation. It is, therefore, argued that a NDPS convict has no victim, since a specific person from the society cannot be identified as his victim and hence, there is no victim of that prisoners offence. It is upon such analogy that in the earlier case of Tommy Thomas which came to be followed in the case of Basudev Joshi, the NDPS convicts were granted their full wages, without deduction for the victim and towards the Common Victim Compensation Fund. It is, therefore, argued that reparation to the individual victim is a must and payment generally to the fund or generally to the society is not contemplated under the Act or the Rules, because payment to the victim by the committee set up under the Rules must be on case to case basis. However, there may be a case of an association of persons, or an organization requiring funds for undertaking awareness activities or for work towards persons affected by the NDPS offences.
15. It is also argued on behalf of the petitioners that requirement of seeing deservance of the victim under Rule 415(4) for grant of compensation with reasons, is also a pointer to the fact that there must be a specified victim relatable to a specified prisoner. It is also argued that requirement of making out remittances through Post Office, postal money order receipt with the voucher, under Rule 418(2) is also a similar pointer to that effect.
16. It is not correct to suggest that the reasons to be given must only be relatable to a particular person qua a particular prisoner. The reason that an organization, an association of persons or otherwise who may work towards the amelioration of the effects of the NDPS offences would be a good enough reason to make them deserving cases to obtain compensation if the State worked to that end. Even awareness programmes in the society may fall within such genre of victims.
17. Similarly, a cheque required to be signed by the Inspector General of Prisons and the Superintendent may be made out not only in the name of any particular individual, but also an association of persons or an organization. In fact the provisions of Rule 415(5) would show otherwise. Under that rule, the Government is entitled to issue instructions from time to time for determination of who are the deserving victims. The Government may well issue instructions in that behalf showing specified association of persons, or organizations working towards the rehabilitation of victims of drug crimes to be granted the compensation for that case which would be usefully applied for amelioration of the society as the victim of the NDPC offences. Upon seeing the deservance they would be paid the compensation once by a cheque or by money order from the Common Victim Compensation Fund, consisting of 50% of the wages of all prisoners of the jail and interest thereon, the account of which would have to be kept and which fund would be not only operated, but controlled generally by the Inspector General of Prisons and the Superintendent of Prisons.
18. It may be worthwhile to see that under Rule 414, the wages that would form the fund are the wages earned by the prisoners. Hence, those would be the wages earned by all the prisoners, unless specifically exempted forming a separate class. The contribution to the fund is, therefore, not from the wages of only specified prisoners. There can be no discrimination between the types of prisoners to bring them within the purview of the rule or exempt them there-from, unless the prisoners themselves belong to a class which should not contribute their wages. There is no such classification for the prisoners who are required to contribute a part of their wages earned by them. There cannot be. A distinction is sought to be made out not between two prisoners of different classes, but between the victims. Hence, even though all prisoners must contribute, only the victims of some of them are stated to be deserving of the compensation. It is, therefore, argued that since a NDPS convict œhas no victim?, none can be paid compensation and, therefore, no compensation can be deducted. Once it is seen that the doctrine of victimology would apply to the State at large, this narrow interpretation must be rejected.
19. Rule 414 forms two parts. It relates to contribution from all prisoners (in plural). It relates to victim of a particular prisoner (in singular). The contribution has to be made by all. The payments would be made to specified deserving victims, as identified by the Committee and as per instructions issued by the Government from time to time. Consequently, it does not matter that the words œvictim of the prisoner's offence?, relate to a specific victim of that offence.
20. It is also argued that under Section 357A of the Code of Criminal Code, 1973, a victim compensation scheme is envisaged. Section 357A which has been incorporated under the Amendment Act 5 of 2009 is also required to be applied in a different field. It enjoins the State Government to prepare a scheme for compensating victims who require rehabilitation, as recommended by the District Legal Service Authority or the State Legal Service Authority, even in case of an acquittal or discharge, or where the offender is not traced or identified. That scheme has nothing to do with the contribution from the prisoners. The State Government alone would have to take up that financial burden, aside from taking steps towards victimology by a welfare State. It does not enhance the interpretation of the Prisoners Act or the Prisons Rules. Section 357A may be an alternate means of providing compensation, but it holds a different field. It would be seen by the Prisons Authorities as per instructions issued from time to time under Rule 415(5) of the aforesaid rules. Similarly, the present day prison reforms may require schemes for correction of drug addicted persons, drug de-addiction centers, rehabilitation of drug addicts, etc.. The State or any organisation may undertake such schemes. However, that also is a part of a separate field of endeavour. Hence, though such prisoners may require to be reformed or need their savings from their earnings, it cannot be allowed to the exclusion of the victims of their offence only because those victims are not directly identifiable. The reformation of prisoners must be commensurate with rehabilitation, relief and reparation schemes for victims. It cannot be from the contribution of their wages which must go to their victims and not themselves.
21. It is argued on behalf of the petitioners that the petitioners pay debt to the society by their sentensing, as also a fine which is rather strict. Hence, they contend that no further burden be placed upon them. Serving the sentence is upon conviction which is when a case of committing an offence as grave as under the NDPS Act beyond reasonable doubt is made out against an accused. That payment of debt is for the remorse that must follow the act of the offender which has been proved beyond reasonable doubt. That does not, in any manner, lend any assistance to the victims of crime. Of course, a prisoner himself would require to earn and save the earnings for his future when he would come out into the society. It is to that end that the prison reforms require payment to be made to the prisoners though rigorous imprisonment would have been ordered at the time of sentensing. The payment of fine is essentially for defraying cost of the exchequer in prosecuting the crimes. Unless it is specifically ordered under Section 357(1)(a) of the Cr. P.C., it would not form part of the compensation to be granted to the victim.
22. It is also argued on behalf of the petitioners that the petitioners would not know how the contribution made by them would be defrayed. That is not an aspect for consideration at the time of contribution to the fund. It is only when the funds are defrayed that the petitioners or for that matter, any prisoner may challenge such defraying. The petitioners wife or children may themselves be victims of his acts and omissions. They may have suffered gross loss and injury as also ruin. Should they apply as victims of such prisoner's offence, the committee would consider their case of victimization on merits, on case to case basis. The prisoners themselves cannot be victims of their own acts. Fifty percent of their amount, therefore, cannot go to them personally even if in a given case it will have to go to their wives or children as true victims of their acts and omissions.
23. It is, therefore, rightly argued on behalf of the respondents that all prisoners would have to be treated equally. Otherwise, there would be NDPS prisoners and non-NDPS prisoners. The victims who are to be paid, are only deserving victims and not all victims. The parameters of such deserving would be considered by the committee.
24. The petitioners have not challenged the aforesaid sections or rules. The petitioners have also not challenged the order issued by the Director of Prisons dated 12th August, 2011. The Rules and the Order, therefore, stand. The petitioners only contend that the rule is not read correctly by the State. That contention is wholly misconceived.
25. Consequently, the petitions are devoid of merit and are, accordingly, dismissed. Rule is discharged.