Special POCSO Courts cannot grant interim compensation or compensation in case of acquittal, discharge or non availability of the offender of the crime
It is very simple, Special POCSO Courts cannot do so for Rule 7(1) and (2) of Protection of Child from Sexual Offences Rules 2012 (herein after POCSO Rules) are ultra-virus the Protection of Child from Sexual Offences Act 2012 (herein after POCSO Act). This is how it is.
Rule 7 (1) and (2) of POCSO Rules read as under:-
“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.”
POCSO rules have been framed in exercise of powers conferred by sub-section (1), read with clauses (a) to (d) of sub-section (2) of Section 45 of the POCSO Act. The opening paragraph of the Rules reads as under:-
“In exercise of the powers conferred by sub-section (1), read with section (a) to (d) of sub-section (2) of section 45 of the Protection of Child from Sexual Offences Act 2012 (32 of 2012), the Central Government hereby makes the following rules namely:-……..”
What is of relevance for us is clause (c) of sub-section (2) of Section 45, which relates to the powers of Central Government to frame the Rules with regard to the payment of compensation under sub-section (8) of Section 33. The rest of the clauses of the Section are related to some other matters with which we are not concerned with. This Section reads as under:-
Section 45 (2) : In particular, and without prejudice to the generality of the foregoing powers, such rules may provide for all or any of the following matters, namely :-
(c) the payment of compensation under sub-section (8) of Section 33;
Going to section 33(8) would show that it gives powers to Special Court in appropriate cases to direct payment of compensation to the child for any physical or mental trauma caused to him or for immediate rehabilitation of child. It reads as under:-
“Sec. 33(8):- In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him/her or for immediate rehabilitation of such child”.
One would notice that the expression “in addition to the punishment” controls section 33(8). In other words, everything stated in the Section follows after the punishment has been given by the Court. To put in the plain words, after the punishment has been awarded by the Court, the Court in addition thereto can grant compensation on three counts: (i) for Physical Trauma, (ii) for Mental Trauma and, (iii) for Rehabilitation of the child. This completely rules out the power of the Court to grant interim compensation or grant compensation in the cases where there has been discharge or acquittal of the accused or where the accused had not been traced.
On retracing the steps, what we get to is this, the power to frame the POCSO Rules is drawn from Section 45 of the POCSO Act and the Section 45 allows the framing of Rules so far as they relate to awarding of compensation only in reference to Section 33(8) and thus, any rule framed under Sec. 45 which provides for granting interim compensation in case of acquittal, discharge or the accused having not being traced, as is being done under Rule 2 of the POCSO Rules, is beyond the powers granted under Section 45 of the POCSO Act. Therefore, Rule 2 of POCSO Rules is ultra-virus to Section 45 (2)(c)of POCSO Act.
The hope, however, is not lost. Even in such eventualities, the compensation can be granted. The Trial Court can recommend payment of compensation in case of acquittal or discharge, to the victim not to compensate for mental trauma or physical trauma but for the rehabilitation of the victim in exercise of Powers under Sec. 357(A)  of the Criminal Procedure Code in accordance with the victim compensation scheme which may have been framed under sub-section (1) of Section 357(A) of the Code. In all other cases where the offender is not traceable or identified or no trial takes place, the victim or his dependents can approach the State or State Legal Services Authority for the award of compensation under sub-section 4 of Section 357(A) of the Code under the victim compensation scheme, just referred. There is, however, no scope for grant of interim compensation under Section 357 A(4), except the State or the District Legal Service Authority may order for immediate first aid facility or medical benefits to be given to the Victim or any other interim relief (may be financial assistance to meet the special needs) which the authority may consider appropriate.
There is no denying the fact that the Rules 7(1) and (2) of the POCSO Rules are well intended but it would be better that the corresponding provisions which may empower inclusion of these Rules, may be also introduced in the POCSO Act by enlarging the scope of Section 33(8).
LAXMI KANT GAUR
Delhi Judicial Academy
 357A. Victim compensation scheme. - (1) Every State Government in co-ordination with the Central Government shall prepare a scheme for providing funds for the purpose of compensation to the victim or his dependents who have suffered loss or injury as a result of the crime and who require rehabilitation.
(2) Whenever a recommendation is made by the Court for compensation, the District Legal Service Authority or the State Legal Service Authority, as the case may be, shall decide the quantum of compensation to be awarded under the scheme referred to in sub-section (1).
(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or discharge and the victim has to be rehabilitated, it may make recommendation for compensation.
(4) 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.
(5) On receipt of such recommendations or on the application under sub-section (4), the State or the District Legal Services Authority shall, after due enquiry award adequate compensation by completing the enquiry within two months.
(6) The State or the District Legal Services Authority, as the case may be, to alleviate the suffering of the victim, may order for immediate first-aid facility or medical benefits to be made available free of cost on the certificate of the police officer not below the rank of the officer in charge of the police station or a Magistrate of the area concerned, or any other interim relief as the appropriate authority deems fit."