Guriya Swayam Sevi Sansthan Thru' Its President Vs. Union Of India Thru' Principal Secy. & 5 Others

Allahabad High Court (Division Bench (DB)- Two Judge)

WRIT - A, 4579 of 2015, Judgment Date: May 26, 2015

HIGH COURT OF JUDICATURE AT ALLAHABAD 

Chief Justice's Court AFR 
Case :- PUBLIC INTEREST LITIGATION (PIL)      No. - 4579 of 2015 

Petitioner :-        Guriya Swayam Sevi Sansthan Thru' Its President 
Respondent :-        Union Of India Thru' Principal Secy. & 5 Others 
Counsel for Petitioner :- Raj Kumar 
Counsel for Respondent :- C.S.C.,A.S.G.I./2015/0033,Pradeep Singh Sisodia,Ram Dular 

Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice 
Hon'ble Manoj Kumar Gupta,J. 

This writ petition has been filed in the public interest by an organization which is active in the fight against human trafficking, especially forced labour and commercial sexual exploitation of minor girls and children in the State of Uttar Pradesh. The relief which has been sought is a mandamus for the enforcement of Rule 7 (4) of the Protection of Children from Sexual Offences Rules 2012, by constituting a Victims Compensation Fund under Section 357-A of the Code of Criminal Procedure, 1973. 
Rule 7 (4) of the Rules reads as follows: 
"7. Compensation - (1) The Special Court may, in appropriate cases, on its own or on an application filed by or on behalf of the child, pass an order for interim compensation to meet the immediate needs of the child for relief or rehabilitation at any stage after registration of the First Information Report. Such interim compensation paid to the child shall be adjusted against the final compensation, if any. 
(2) The Special Court may, on its own or on an application filed by or on behalf of the victim, recommend the award of compensation where the accused is convicted, or where the case ends in acquittal or discharge, or the accused is not traced or identified, and in the opinion of the Special Court the child has suffered loss or injury as a result of that offence. 
(3) Where the Special Court, under sub-section (8) of Section 33 of the Act read with sub-sections (2) and (3) of Section 357A of the Code of Criminal Procedure, makes a direction for the award of compensation to the victim, it shall take into account all relevant factors relating to the loss or injury caused to the victim, including the following:- 
(i) type of abuse, gravity of the offence and the severity of the mental or physical harm or injury suffered by the child; 
(ii) the expenditure incurred or likely to be incurred on his medical treatment for physical and/or mental health; 
(iii) loss of educational opportunity as a consequence of the offence, including absence from school due to mental trauma, bodily injury, medical treatment, investigation and trial of the offence, or any other reason; 
(iv) loss of employment as a result of the offence, including absence from place of employment due to mental trauma, bodily injury, medical treatment, investigation and trial of the offences, or any other reason; 
(v) the relationship of the child to the offender, if any; 
(vi) whether the abuse was a single isolated incidence or whether the abuse took place over a period of time; 
(vii) whether the child became pregnant as a result of the offence; 
(viii) whether the child contracted a sexually transmitted disease (STD) as a result of the offence; 
(ix) whether the child contracted Human Immunodeficiency Virus (HIV) as a result of the offence; 
(x) any disability suffered by the child as a result of the offence; 
(xi) financial condition of the child against whom the offence has been committed so as to determine his need for rehabilitation; 
(xii) any other factor that the Special Court may consider to be relevant. 
(4) The compensation awarded by the Special Court is to be paid by the State Government from the Victims Compensation Fund or other scheme or fund established by it for the purposes of compensating and rehabilitating victims under section 357A of the Code of Criminal Procedure or any other laws for the time being in force, or, where such fund or scheme does not exist, by the State Government." 

In response to the direction of the Court, the Principal Secretary (Home) filed a counter affidavit stating that in implementation of the provisions of Rule 7(4), the State Government had notified a Victims Compensation Fund and the Governor had notified the Uttar Pradesh Rani Laxmibai Mahila Samman Kosh Niyamawali, 2015 on 6 February 2015. Accordingly, a Government Order was issued on 16 April 2015 to all the District Magistrates, the Senior Superintendents of Police and Superintendents of Police for the implementation of Rule 7(4). It was envisaged that the review of offences/compensation in different districts be conducted in the monthly meeting of the District Monitoring Committees together with the District Judge. The State Government has allocated a budget of Rs.2 crores by a Government Order dated 1 April 2015 for the financial year 2015-16. The fund is to be operated by the Secretary of the State Legal Services Authority and a decision was taken to transfer the fund at a meeting held on 16 April 2015 by the Principal Secretary (Home). 
When the petition came up before this Court for further hearing on 4 May 2015, this Court observed that there was a glaring lapse in defining the offences covered by the Victims Compensation Fund. This was because only offences under Sections 4, 6 and 14 of the Protection of Children from Sexual Offences Act 20122 were covered. Offences of sexual assault under Section 7 (punishable under Section 8), of aggravated sexual assault under Section 9 (punishable under Section 10) and of sexual harassment under Section 11 (punishable under Section 12) were not covered by the Victims Compensation Fund. By an order dated 4 May 2015, we observed whether this was an inadvertent mistake or otherwise, this should be rectified at the earliest. The State Government was directed to inform the Court of the remedial steps which have been taken to rectify this glaring omission so as to bring the offences under Sections 7, 9 and 11 of the Act within the purview of the Victims Compensation Fund. 
In pursuance of the direction which was issued by the Court, the Principal Secretary (Home) has filed an affidavit stating that in order to bring all six Sections, namely Sections 4, 6, 7, 9, 11 and 14 of the POSCO Act, 2012 within the purview of the U.P. Victims Compensation Scheme 2014, it has been decided to place the matter before the Cabinet for approval. The Court has been informed that the matter is under process and the entire exercise would be completed shortly. In the meantime, the budgetary allocation of Rs.2 crores has already been transferred to the Secretary of the U.P. State Legal Services Authority, Lucknow. A direction has also been issued to all the District Magistrates as well as the Senior Superintendents of Police/Superintendents of Police on 18 May 2015 for implementing and monitoring the beneficial provisions contained in the scheme so as to provide compensation to the victims from the allocated fund. 
The State Government has responded to the direction of this Court by rectifying the omission of the offences under Sections 7, 9 and 11 of the Act from the purview of the fund. The matter has already been forwarded to the Cabinet and the entire process is expected to be completed shortly. The direction which was issued by the Court on 4 May 2015 shall now be operative as the final decision in these proceedings. There is absolutely no reason or justification to exclude offences under Sections 7, 9 and 11 from the purview of the fund in addition to the provisions of Sections 4, 6 and 14. All the victims of these offences would be in need of beneficial rehabilitation. The setting up of the fund is an important instrument of ensuring rehabilitative relief to the victims of these offences. 
Consequently, the State Government shall now abide by the statement and complete the exercise within a period of two months from today. The fund has been placed under the control of the Secretary of the State Legal Services Authority, Lucknow. The Registrar General shall forward a copy of this order to the Secretary of the State Legal Services Authority expeditiously so that due and proper steps can be taken for compliance and for ensuring that the modalities for the disbursement of compensation to child victims are duly formulated in accordance with the scheme and necessary remedial steps are taken for the disbursement of compensation as awarded. In the event that in future it becomes necessary to increase the budgetary allocation, the Secretary of the State Legal Services Authority shall route such a request through the Registrar General to the State Government for necessary steps as may be deemed appropriate. 
However, should it become necessary for the petitioner to file further proceedings, in the light of the experience gained, it is needless to add that it would be open to the petitioner to move this Court in appropriate proceedings. The petitioner has rendered commendable assistance to the Court in these proceedings by highlighting an important public issue in the public interest petition for which the Court would record its appreciation. 
The petition is, accordingly, disposed of. There shall be no order as to costs.

Order Date :- 26.5.2015                               (Dr.D.Y.Chandrachud,C.J.) 
RK 

                                                                (M.K. Gupta,J.)