J.N. Patel, J.
1. The petitioner, Kalpana d/o Nilaram Harinkhede (minor girl), who is a victim of assault and use of criminal force with intention to outrage her modesty at the hands of respondent No. 2. Moreshwar s/o Ghabilal Rahandale, and respondent No. 3, Keshaw s/o Dimodhar Patle, has approached this Court by invoking its jurisdiction under Sections 226 and 227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, impugning the discharge of respondent Nos. 2 and 3 from having committed offence under Section 354 read with Section 34 of the Indian Penal Code, by the Judicial Magistrate. First Class, Gondia, in State v. Moreshwar Rahangdale and Anr., Criminal Case No. 1065 of 1995 decided on 7.1.1998 on the ground that the trial of the respondents/accused was pending in the said Court for more than two years, without any fault on their part, and as the trial has not commenced, in view of the decision of the Apex Court in 'Common Cause' a Registered Society v. Union of India, Writ Petition No. 1128/86 decided on 1.5.1996 : : 1996CriLJ2380 discharged the respondent/accused.
2. It was contended by the petitioner that the respondents/accused are discharged of the offence under Section 354 read with Section 34 of the Indian Penal Code, in spite of there being sufficient evidence on record, which would have resulted in their conviction, and the Trial Court having misinterpreted the judgment of the Apex Court, has wrongly given them the benefit of discharge. It was contended that due to the incident, the petitioner had to suffer pain, humiliation and mental torture and, therefore, the impugned order discharging the respondents/accused deserves to be quashed and set aside and they should be dealt in accordance with law.
3. When the Criminal Writ Petition came up for hearing, the Counsel for the petitioner and the respondents/accused were not present. Therefore, this Court heard the learned A.P.P. and disposed of the writ petition by its order dated 1st December, 1998, holding that the order of the Magistrate cannot be faulted with, as it was passed in view of the directions given by the Apex Court in the 'Common Cause' judgment and except for observing that the category in which the case ought to have been considered would be 2(a) and 2(b). While concluding the order, this Court did observe that 'It is unfortunate that the petitioner had to suffer the humiliation at the hands of the respondent Nos. 2 and 3, but the Trial Court had no option but to discharge the respondent Nos. 2 and 3 and having done so in accordance with the directions of the Apex Court, it does not call for any interference. The petition stands dismissed. Rule stands discharged.'
3. The petitioner again moved this Court by filing the present application for review of the judgment and order dated 1st December, 1998. The first contention of the petitioner was that her counsel could not remain present at the time of hearing because of which she has been deprived of an opportunity of being heard. According to the learned Counsel for the petitioner, the State having failed to prosecute the respondents/accused, the applicant, who was the complainant, has suffered the crime with humiliation and the accused persons have been discharged due to the fault on the part of the prosecution to prosecute the case within the period of two years. It was submitted that if this Court finds that in accordance with the order in the 'Common Cause' case passed by the Supreme Court, the accused now cannot be prosecuted and convicted as they have been discharged, at least this Court should issue directions to the State to compensate the complainant (petitioner) for its failure to prosecute the case before the Trial Court. This submission of the learned Counsel for the petitioner found favour with this Court, the petition was admitted and show cause notice came to be issued to the State, as to why it (State) should not be called upon to pay compensation to the applicant/petitioner for its failure to prosecute the case before the Trial Court, as she was a victim of assault and use of criminal force with intent to outrage her modesty at the hands of the accused persons, as now the accused persons are free without being tried for the said charge. The learned A.P.P. sought time to file his reply. The petitioner was granted leave to amend the review application so as to plead her case for compensation.
4. According to the petitioner, immediately after the incident, she, along with her father, lodged a report at Goregaon Police Station, on which offence under Section 354 read with Section 34 of the Indian Penal Code came to be registered against the respondents/accused, vide Crime No. 90/95. A thorough investigation into the case was made. On 31.10.1995, a charge-sheet came to be filed in the Court of the Judicial Magistrate, First Class Gondia and it came to be registered as State v. Moreshwar Rahangdale and Anr., Criminal Case No. 1065 of 1995 decided on 7.1.1998. It is contended by the petitioner that after filing of the charge-sheet, nobody appeared on behalf of the State and the matter was adjourned to near about 16 times, out of which, as the Roznama of the case shows, the Assistant Public Prosecutor was present on four occasions only and, that too, he had not taken any steps to prosecute the matter. On 12.11.1997, the accused filed an application for discharge, in view of the judgment of the Apex Court in 'Common Cause' case. On that day, the A.P.P. was not present on behalf of the State and the matter was adjourned for filing the say of the A.P.P. Thereafter, on six occasions the matter was adjourned, out of which the A.P.P. was present only on two dates, but he did not file any say on the application filed by the accused persons and, therefore, on 7.1.1998, the learned Magistrate recorded the absence of the State and passed the order discharging the accused persons. It is, therefore, contended that as the Prosecutor failed to remain present and prosecute the case, the State was negligent in prosecuting the accused persons, though it was listed before the Court on several occasions and was required to be adjourned from time to time for absence of the Prosecutor. It is submitted that the petitioner was at no fault, and if she and other witnesses in the case were summoned in the case, they would have definitely supported the prosecution case which, in all respects, would have ended in conviction of the respondents/accused, but as the respondent No. 1 /State failed to prosecute the case, no charge came to be framed against the respondents/accused and the matter was pending in the Court for non-prosecution, resulting in discharge of the respondents/accused.
5. The learned Counsel for the petitioner submitted that the petitioner, who is a young girl of 17 years had suffered sexual assault resulting in humiliation and mental torture, which has caused irreparable injury to her. The petitioner has undergone shock and a feeling of helplessness is evident in the family of the petitioner, and due to this incident, the petitioner and her family are suffering and facing hardships in getting the petitioner married, and this can be directly attributed to the State for its failure to prosecute the accused persons, and the acquittal/discharge of the accused has only defamed the petitioner in the society. In such circumstances, it is submitted that the petitioner is entitled for compensation from the State for damage and irreparable loss suffered by her and the family, for the humiliation undergone by her at the hands of the respondents/accused who are roaming scot free In the society. The learned Counsel for the petitioner claims that the State should be directed to pay a sum of rupees one lakh to the petitioner as compensation and also hold enquiry against its officers who were negligent in prosecuting the case which resulted in discharge of the respondents/accused.
6. The learned Counsel for the petitioner has placed reliance on various cases in support of the claim of the petitioner for being granted compensation. They are : (1) Radul Sah. v. State of Bihar and Anr. : 1983CriLJ1644 .
(2) Sebastian M. Hongray v. Union of India : 1984CriLJ830 and Sebastian M. Hongray v. Union of India : [1984]1SCR904 .
(3) Bhim Singh, MLA v. State of J. & K. and Ors. : 1986CriLJ192 .
(4) Saheli A Women's Resources Centre through Ms. Nalini Bhanot and Ors. v. Commissioner of Police, Delhi and Ors. : AIR1990SC513 .
(5) State of Maharashtra and Ors. v. Ravikant S. Patil, : (1991)2SCC373 .
(6) Smt. Nilabati Behera Alias Lalita Behra v. State of Orissa and Ors., : 1993CriLJ2899 .
(7) P.V. Kapoor and Anr. v. Union of India and Anr. : 1991(21)DRJ285 ; and
(8) D.K. Basil v. State of W.B., b : 1997CriLJ743 in order to emphasize that the State is under obligation to pay compensation to its victims.
7. The learned A.P.P. does not dispute the facts of the case, i.e., that the respondents/accused came to be prosecuted for having committed offence under Section 354 read with Section 34 of the Indian Penal Code, and that the learned Magistrate was required to discharge the respondents/accused, by his order dated 7.1.1998, as the State failed to prosecute the respondents/accused within the prescribed period. What is contested before this Court is that once this Court having dismissed the Criminal Writ Petition filed by the petitioner, by its order dated 1.12.1998, on merits, it cannot review its order by entertaining the review application filed by the petitioner, as there is no provision under the Criminal Procedure Code to review the order passed by the Court, as held in the case of State of Orissa v. Ram Chander Agarwala : 1979CriLJ33 .
8. It is further submitted that the relief, which the petitioner is now seeking by way of review, was not sought in the original Criminal Writ Petition by her, as the only ground on which the original Criminal Writ Petition came to be filed was that the order of discharge of the accused persons passed by the learned Magistrate was erroneous and illegal, as there was sufficient evidence on record to convict the accused persons, and that the learned Magistrate gave benefit of discharge to the accused persons by misinterpreting the judgment of the Apex Court in 'Common Cause' case; whereas in the review application, a new ground is added praying for compensation from the State, on the allegations that due to the failure of the State to prosecute the accused persons, they have been discharged. It is submitted that no new ground is allowed to be raised in the review petition, as held by the Supreme Court in the case of Dr. Janak v. S.D. Devegoda 1977 (10) SCC 440 and, therefore, the review application is not maintainable and is liable to be dismissed.
9. The learned A.P.P. further submits that the after filing of the charge-sheet against the respondents/accused, the Magistrate ought to have framed charges against them and explained particulars thereof to the accused and thereafter only, it was the responsibility of the State to examine witnesses in support of the charges. However, the learned Magistrate discharged the respondents/accused before framing the charge against them. Therefore, according to the learned A.P.P., had the charge been framed, there was no possibility of discharging the accused persons and therefore, it cannot be said that the State failed to prosecute the case within the prescribed time and as such no liability can be fixed on the prosecution.
10. In respect of their lapse to prosecute the case, it is submitted that as per the decision of the Apex Court in 'Common Case' case, if charge is not framed within two years from the date of filing of the charge-sheet, the accused are directed to be discharged. According to the learned A.P.P., the Prosecutor who was holding the charge of the J.M.F.C. 3rd Court, Gondia at the relevant time, was also holding additional charge of A.P.P. at Amgaon and also of two other Courts of J.M.F.C. at Gondia, and in view of holding of charge by the A.P.P. of 4 Courts, 3rd Courts at Gondia and one Court at Amgaon, it was not possible for him to attend all the Courts at one arid the same time. It is submitted that as the concerned A.P.P. was busy in other Court on 7.1.1998, he could not attend the J.M.F.C. 3rd Court at Gondia on that day. It is further submitted that in view of the directions of the Honourable Supreme Court in Common Cause case, there was no propriety of the A.P.P. to file his say as no charge was framed by the learned Magistrate, and even if the concerned A.P.P. had filed his say opposing the application of the accused persons for discharge, then also in view of the judgment of the Honourable Supreme Court, the learned J.M.F.C. would have discharged the accused persons. Therefore, it is submitted that, in view of the aforesaid facts, no fault can be found with the concerned A.P.P. in not giving his say to the application for discharge filed by the accused persons. It is submitted that there is no negligence, much less an actionable negligence, on the part of either the Police Station Officer, Gondia, or the concerned A.P.P. in the matter. It is submitted that the State was not negligent in prosecuting the matter, but it was because of the judgment of the Honourable Supreme Court in 'Common Cause' case that the accused persons came to be discharged. It is submitted that the respondent No. 1/State cannot be made liable for payment of compensation, as there was no negligent on its part. It is emphasized that as the concerned A.P.P. was in-charge of so many Courts, it was not possible for him to remain present and prosecute the cases pending in various Courts, and it is due to the holding of additional charge of various Courts by concerned A.P.P., he could not be able to attend the J.M.F.C. 3rd Court at Gondia on 7.1.1998 and, therefore, no liability can be fastened on the respondent No. 1/State.
11. The learned A.P.P. submits that in order to claim compensation, the petitioner is required to prove that the respondent No. 1, while carrying on its duty, has not acted in good-faith and negligently. It is submitted that no compensation can be claimed against the respondent No. 1/State. The learned A.P.P. relies on the case of Rajkot Municipal Corporation v. Manjula Ben and Ors. : [1997]1SCR304 and submits that the Review applications be dismissed.
12. The Apex Court, while dealing with the case of 'Common Cause' a Registered Society through its Director v. Union of India and Ors. AIR 1996 SC 1619 was required to issue the necessary directions, of which the reasons have been given in the judgment as under : -
We are of the opinion that the suggestions made are well-meaning and consistent with the spirit underlying Part-Ill of the Constitution of India and the Criminal Justice System. They deserve serious consideration by this Court and the High Courts in the country. It is a matter of common experience that in many cases where the persons are accused of minor offences punishable not more than three years - or even less - with or without fine, the proceedings are kept pending for years together. If they are poor and helpless, they languish in jails for long periods either because there is no one to bail them out or because there is no one to think of them. The very pendency of criminal proceedings for long periods by itself operates as an engine of oppression. Quite often, the private complainants institute these proceedings out of oblique motives. Even in case of offences punishable for seven years or less - with or without fine the prosecutions are kept pending for years and years together in Criminal Courts, in a majority of these cases, whether instituted by police or private complainants, the accused belong to poorer Sections of the society, who are unable to afford competent legal advice. Instances have also come before Courts where the accused, who are in jail, are not brought to the Court on every date of hearing and for that reason also the cases undergo several adjournments. It appears essential to issue appropriate directions to protect and effectuate the right to life and liberty of the citizens guaranteed by Article 21 of the Constitution. It is also necessary to assure that these criminal prosecutions do not operate as engines of oppression. Accordingly, the following directions are made which shall be valid not only for the States of Uttar Pradesh, Bihar and Delhi but for all the States and the Union Territories.
The Supreme Court classified various offences in categories and ordered appropriate relief as per the classifications of releasing accused on bail and discharging them from the trial. An exception came to be made in case of offences involving (a) corruption, misappropriation of public funds, cheating whether under the Indian Penal Code, Prevention of Corruption Act or any other statute, (b) smuggling- foreign exchange violation and offences under the Narcotics Drugs and Psychotropic Substances Act, (c) Essential Commodities Act, Food Adulteration Act, Acts dealing with Environment or any other economic offences, (d) offences under Arms Act, Explosive Substances Act, Terrorists and Disruptive Activities Act, (e) offences relating to the Army, Navy and Air Force, (f) offences against public tranquillity, (g) offences relating to public servants; (h) offences relating to coins and Government stamp, (i) offences relating to election, (j) offences relating to giving false evidence and offences against public justice, (k) any other type of offences against the State, (1) offences under the Taxing enactments and (m) offences of defamation as defined in Section 499 of the I.P.C.; which are enumerated in para 4 of the said judgment. In these cases, a specific direction was given by the Apex Court that the Criminal Courts shall try the said offences of priority basis. The High Courts are requested to issue necessary directions in this behalf to all the Criminal Courts under their control and supervision. It further gave directions to all the Criminal Courts and all Courts trying criminal cases to take appropriate action. In accordance with the directions given by it, specifying that the directions are applicable not only to the cases pending on this day but also to cases which may be instituted hereinafter.
Unfortunately, the case of the petitioner falls in category 2(b) and as the trial had not commenced for more than two years, the Magistrate was left with no other choice but to discharge the respondents/accused persons, after hearing the Public Prosecutor and other parties represented before him or their Advocates.
13. In the present case, it is not in dispute that after the respondents/accused filed an application for discharge, the learned A.P.P. not only failed to file any reply opposing the same, but even did not remain present when the matter was taken up for hearing by the Magistrate. This by itself is sufficient to show that the learned A.P.P. was negligent in prosecuting the case. The plea taken by the respondent/State that the learned A.P.P. could not attend the Court and prosecute the case of the petitioner as he was looking after various Courts and was required to appear at other places than the Court of J.M.F.C. 3rd Court at Gondia is no excuse. The State has not come forward to explain as to why sufficient number of Prosecutors have not been appointed to prosecute the cases filed before the Criminal Courts at Gondia. This Court takes judicial notice of the facts arising out of various petitions coming before it seeking directions against the State for appointing Prosecutors in various Criminal Courts and except for assurances given by the State that needful would be done, it has not bothered to understand the exigencies of the circumstances and the importance of appointing Prosecutors in the Criminal Courts, so that the matters pending before them can be disposed of speedily. The present situation is such that not only there are no Prosecutors in the Criminal Courts but even we are short of Magistrates and Judges, and so far as the accused persons facing trial in these Courts for various offences are concerned, the decision of the Supreme Court in 'Common Cause' case has turned out to be a boon to them as for the inability of the State to appoint sufficient number of Judge, Magistrates and Prosecutors, they will have to be discharged or acquitted, if their cases are not taken up within the prescribed time as given by the Apex Court in that case.
14. Most important aspect which deserves the consideration of the Court is what happens to the victim of this case. In the present case, the incident of assault, use of criminal force and outraging the modesty of petitioner by the respondents/accused came to be promptly reported to the police. The investigating agency completed the investigation and filed the charge-sheet in the Court and now it was the responsibility of the prosecution to prosecute the case diligently. The Supreme Court in the case of Abdul Rehman Antulay and Ors. v. R.S. Nayak and Ors. : 1992CriLJ2717 lays down the following proposition :
(i) Fair, just and reasonable procedure implicit in Article 221 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also, does not make it any the right for the accused. It is in the interest of all concerned that the guilt or innocence of the accused is determined as quickly as possible in the circumstances.
(ii) Right to speedy trial flowing from Article 21 encompasses all the stages, namely, the stage of Investigation, In inquiry, trial, appeal, revision and retrial. That is how this Court has understood this right and there is no reason to take a restricted view.
(iii) The concerns underlying the right to speedy trial from the point of view of the accused are :
(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expenses and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal ; and
(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.
(iv) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, 'delay is a known defence tactic'. Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay? Proceedings taken by either party in good faith, to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceeding be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The mere fact that an application/petition is admitted and an order of stay granted by a superior Court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex parte representation.
(v) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trials) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the Court concerned, prevailing local conditions and so on -what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and realistic and practical approach should be adopted in such matters instead of a pedantic one.
(vi) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker 'it cannot be said how long a delay is too long In a system where justice is supposed to be swift but deliberate.' The same idea has been stated by White, J. in U.S. v. Ewell, 15 L.Ed. 627 in the following words :.the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than mere speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances.
However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the facts of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.
(vii) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the Court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in U.S.A., the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.
(viii) Ultimately, the Court has to balance and weigh the several relevant factors 'balancing test' or 'balancing process' and determine in each case whether the right to speedy trial has been denied in a given case.
(ix) Ordinarily speaking, where the Court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the Court to make such other appropriate order - including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded - as may be deemed just and equitable in the circumstance of the case.
(x) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the Court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of U.S.A. too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit in effectuates the guarantee of right to speedy trial.
(xi) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.
These principles probably necessitated the directions given by the Apex Court in the 'Common Cause' case (cited supra). The decision of the Supreme Court in Abdul Rehman Antulay's case (supra) as well as 'Common Cause' case, in terms, creates an obligation on the part of the State to create a necessary infrastructure so that the mandate in Article 21 of the Constitution. Right to Speedy Trial is the right of the accused and that speedy trial is also in public interest and it is in the interest of all persons, in the circumstances, is fulfilled. What is absent from the arena of these considerations is that fair, just and reasonable procedure implicit in Article 21 should also be fair, just and reasonable to the victim of crime. The Supreme Court in D.K. Basu v. State of W.B., : 1997CriLJ743 while considering the case of custodial violence observed :
Fundamental Rights occupy a place of pride in the Indian Constitution. Article 212 provides 'no person shall be deprived of the life or personal liberty except according to procedure established by law'. Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression 'life or personal liberty' has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries.
I have no hesitation to read that it would also include within itself a guarantee against the sufferings of the victims of the crime for their inability to get justice due to the failure of the State and its functionaries to provide for prosecution of all persons who have been responsible for committing offences. In the case of Consumer Education and Research Centre and Ors. v. Union of India and Ors. : (1995)IILLJ768SC the Supreme Court while dealing with the concept of social justice as a device to ensure life to be meaningful and livable with human dignity observed that the State is obliged to provide to workmen facilities to reach minimum standard of health, economic security and civilised living. It observed :
The constitutional concern of social justice as an elastic continuous process is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities with which the poor etc. are languishing to secure dignity of their person. The Constitution, therefore, mandates the State of accord justice to all members of the society in all facets of human activity. The concept of social justice imbeds equity to flavour and enliven practical content of 'life'. Social justice and equality are complementary to each other so that both should maintain their vitality. Rule of law, therefore, is a potent instrument of social justice to bring about equality in results.
16. In the present case what I have found is that a young girl, who is a victim of an offence under Section 354 of the Indian Penal Code, and her family have been put in such a helpless situation that they are left with no remedy at all. The respondents/accused have outraged her modesty, and as they could not be prosecuted within a period of two years, in the name of fair justice and speedy trial, they are let off and walking on the street scot-free with impunity. How could the State restore the insult and humiliation suffered by the victim and her family? Who are the persons languishing to secure dignity of their persons? In my humble opinion, the only remedy which Is available to the petitioner is to direct the State to compensate her for the crime committed on her by the respondents/accused and the liability to pay compensation squarely falls on the State, because it is the State and State alone which has failed to provide a diligent Prosecutor to prosecute the case against the respondents/accused in the Court. As observed by the Supreme Court in Consumer Education and Research Centre's case (supra), 'The Constitution, therefore, mandates the State of accord justice to all members of the society in all facets of human activity.'
The State having failed In its duty, is bound to compensate the petitioner.
17. Under our criminal justice system, it is only under the Criminal Procedure Code and the Probation of Offenders Act, compensation can be ordered to be paid to the victims of crime. Section 357 of the Criminal Procedure Code, 1973 deals with the case in which the victim of crimes can be compensated, and insofar as the Probation of Offenders Act Is concerned, its Section 5 authorises a Court releasing an offender on probation to direct him to pay such compensation as the Court thinks reasonable for loss or injury caused to any person by the commission of the offence and such costs of the proceedings as the Court thinks reasonable. Both these provisions, i.e., Section 357 of the Criminal Procedure Code as well as Section 5 of the Probation of Offenders Act, enable the Court to pass compensation orders only when the person prosecuted has been tried, found guilty and sentenced. In case the respondents/accused were charged and tried, this Court has no hesitation that the trial would have resulted in their conviction, as on going through the charge-sheet, a strong prima facie case has been made out against them for having committed offence under Section 354 read with Section 34 of the Indian Penal Code, as not only the victim is there to support the prosecution case but there are eyewitnesses also, and in all probability the Court would have convicted the respondents/accused and also imposed fine on them and, in its discretion, granted compensation to the petitioner under Section 357 of the Criminal Procedure Code or under Section 5 of the Probation of Offenders Act, whatever the case may be. What this indicates is that compensation to the victim of crime is inherent in the criminal justice system and there are specific provisions to grant so. But it is only when the accused are found guilty, convicted and sentenced for the offence/s with which they are charged. The complaint of the petitioner that she has been molested by the respondents/accused would have been compensated by vindictive damages. Therefore, this Court has no hesitation to hold that the petitioner is well entitled for claiming compensation from the State for non - prosecution of the accused persons, as this right of her is inherent, because if the accused persons were prosecuted and convicted. She would have been entitled for compensation. Therefore, it does not lie in the mouth of the learned A.P.P. to say that in challenging the order of discharge of the respondents/accused persons in her petition before this Court. The petition did not claim any compensation and, therefore, by way of review, she is prevented from claiming it by adding a new ground. The submission of the learned A.P.P. cannot be accepted. It is not a new ground at all. What the petitioner sought was quashing of the orders passed by the Magistrate in discharging the accused, and if law forecloses this relief against her, the right to claim compensation will always be there, as it is for no fault of her that the accused persons have been discharged and, in the facts and circumstances, the liability for allowing the respondents/accused persons to go scot-free squarely falls on the State because of its inability to prosecute them within a period of two years.
18. Another contention of the learned A.P.P. that this Court cannot review its own order, is far-fetched. The petitioner has approached this Court by filing a writ petition invoking Articles 226 and 227 of the Constitution of India and Section 482 of the Criminal Procedure Code. In the case of Shiv Deo Singh and Ors. v. State of Punjab and Ors. AIR 1963 SC 1909 the Supreme Court has already settled the law by observing that the High Court has, under Article 226 of the Constitution of India, inherent power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. This Court has no hesitation to allow the review application, as otherwise it would result in miscarriage of justice. Though the petitioner has lost the remedy of having the guilty punished, she would be left to suffer humiliation and indignity as a victim of the crime, without any compensation to be paid to her by the State which is squarely responsible for its failure to prosecute the respondents/accused within time.
19. Crime is legally deemed an offence against the State or the community or the public and is punishable, as a deterrent to the offenders and Ors., for the sake of public order, peace and well being and in the interest of society. If criminals are allowed to go scot free just because the State fails to prosecute them, it threatens the security or well being or good order of society. Enforcement of Criminal Law is a major form of social control failure of the State to prosecute offenders will only send dangerous signals in society and will uproot the very foundation of rule of law ; as offences committed by persons are major disturbances of peace, order and good Government, The society needs to be protected by the State which is the sole repository of these powers, and if offender is not booked for the crime committed and made to suffer retribution for harm done and expiate his moral guilt, it will lead to chaos and disorder in society as people will be forced to take law in their hands. This Court hopes that by directing the State to pay compensation to the victim of crime for its failure to prosecute criminals, the State will take steps to combat the menace by promptly attending to its sovereign business of providing the required infrastructure so that its Criminal Justice System can meet the mandate of our Constitution to provide fair, just and reasonable procedure for both the victims and the accused.
20. The petitioner has sought for compensation of Rs. 1,00,000/- from the State. After giving its anxious consideration to the facts and circumstances, this Court finds that a sum of Rs. 10,000/- would be sufficient to meet the ends of justice and award Rs. 10,000/- as compensation to the petitioner.
21. In the result, the Review application is allowed. The respondent No. 1/State is directed to pay to the petitioner a sum of Rs. 10,000/- (Rupees Ten Thousand) as compensation, within a period of four weeks from the date of this order.
The order of the learned Magistrate discharging the respondents/accused persons is upheld.
Rule is made absolute in above terms, with costs.