Section 357 CrPC vs Section 395 BNSS — Victim Compensation (CrPC 357-357C)

In India, Sections 395, 396 and 397 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Sections 357 to 357C of the Code of Criminal Procedure, 1973 (CrPC) on 1 July 2024. Court-ordered compensation and the State victim compensation scheme are carried over almost word for word; free hospital treatment now also covers POCSO Act victims.

At a glance

These are procedural provisions, not offences, so the BNSS First Schedule does not classify Sections 395 to 397 themselves; only the hospital offence in Section 200 BNS is classified, and it is classified as Section 166B IPC was.

What changed

• Minor edit — Section 395(1)(a): Section 357(1)(a) CrPC, as printed in the India Code text, reads "in defraying the expenses of properly incurred in the prosecution". Section 395(1)(a) reads "in defraying the expenses properly incurred in the prosecution". Clauses (b), (c) and (d) are the same.
• Minor edit — Section 395(2): "subject to appeal no such payment" becomes "subject to appeal, no such payment". Sub-sections (3), (4) and (5) are unchanged.
• Minor edit — Section 396(1)-(6): the text of Section 357A is repeated; the only change is in sub-section (3), where "compensation awarded under section 357" becomes "compensation awarded under section 395". The two-month enquiry period in sub-section (5) is unchanged.
• Modified — Section 396(7): Section 357B was a separate section listing Sections 326A, 376AB, 376D, 376DA and 376DB IPC. Section 396(7) lists "section 65, section 70 and sub-section (1) of section 124" BNS, and "under section 357A" becomes "under this section". On a comparison of the texts, Section 65 BNS covers rape of a woman under sixteen (Section 65(1)) as well as under twelve (Section 65(2)); Section 376(3) IPC, the rape-under-sixteen provision, was not in the Section 357B list. The heading of Section 357B, which named only Sections 326A and 376D, disappears with the merger.
• Expanded — Section 397: Section 357C listed Sections 326A, 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB and 376E IPC. Section 397 lists Sections 64, 65, 66, 67, 68, 70, 71 and 124(1) BNS and adds "sections 4, 6, 8 or section 10 of the Protection of Children from Sexual Offences Act, 2012".
• New — Section 398: every State Government "shall prepare and notify a Witness Protection Scheme". The CrPC had no counterpart section.
• Related definition — Section 2(1)(y): "victim" now means a person who suffered loss or injury caused by "the act or omission of the accused person"; Section 2(wa) CrPC said "the act or omission for which the accused person has been charged". The guide on victim rights and compensation covers this and the other participation rights.

Statutory text (relevant extract)

Extract, Section 357(3) CrPC (repealed from 1 July 2024), repeated in Section 395(3) BNSS:

When a Court imposes a sentence, of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.

Extract, Section 396(3) and (7) BNSS:

(3) If the trial Court, at the conclusion of the trial, is satisfied, that the compensation awarded under section 395 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.

(7) The compensation payable by the State Government under this section shall be in addition to the payment of fine to the victim under section 65, section 70 and sub-section (1) of section 124 of the Bharatiya Nyaya Sanhita, 2023.

How it works — two sources of compensation

Source 1: the accused (Section 395).

1. Where a fine is imposed (Section 395(1)): the court "may, when passing judgment" order all or part of the fine recovered to be applied to (a) prosecution expenses; (b) compensation for loss or injury caused by the offence, when compensation is, in the court's opinion, recoverable in a civil court; (c) compensation to persons entitled under the Fatal Accidents Act, 1855, where the conviction is for causing death; and (d) compensation to a bona fide purchaser of property involved in theft, criminal misappropriation, criminal breach of trust, cheating or stolen-property offences, when the property is restored to the person entitled to it.
2. Where the sentence has no fine (Section 395(3)): the court may order the accused to pay a specified amount to the person who suffered loss or injury.
3. Timing (Section 395(2)): where the case is subject to appeal, no payment out of the fine is made until the appeal period has run out or the appeal is decided.
4. Higher courts (Section 395(4)): an appellate court, the High Court or a Court of Session in revision may also make the order.
5. Civil suit (Section 395(5)): a later civil court must take into account any sum paid or recovered under the section.

Source 2: the State scheme (Section 396).

1. Each State Government, in co-ordination with the Central Government, prepares a scheme providing funds to compensate victims or dependents "who have suffered loss or injury as a result of the crime and who require rehabilitation" (Section 396(1)).
2. Entry is by one of two routes: a court recommendation at the end of trial, where Section 395 compensation is inadequate or the case ended in acquittal or discharge (Section 396(3)); or a direct application by the victim or dependents where the offender is not traced or identified and no trial takes place (Section 396(4)).
3. The District or State Legal Services Authority decides the quantum (Section 396(2)) and, "after due enquiry", awards adequate compensation, "completing the enquiry within two months" (Section 396(5)).
4. Pending that, the Authority may order immediate first-aid or medical benefits free of cost, or other interim relief, on the certificate of a police officer not below the rank of officer in charge of the police station or a Magistrate of the area (Section 396(6)).
5. For the offences in Sections 65, 70 and 124(1) BNS, each of which provides that the fine "shall be paid to the victim", scheme compensation is in addition to that fine (Section 396(7)).

Treatment (Section 397). All hospitals, public or private, whoever runs them, "shall immediately, provide the first-aid or medical treatment, free of cost" to victims of the listed BNS and POCSO offences, and "shall immediately inform the police". A person in charge of a hospital who contravenes Section 397 commits the offence in Section 200 BNS.

What this means in practice

For the victim and the victim's advocate

• At sentencing, ask the court to consider compensation under Section 395, and to recommend scheme compensation under Section 396(3) if the amount is inadequate for rehabilitation or the case ends in acquittal or discharge. The Supreme Court's decisions below treat consideration of compensation as a duty of the court.
• Where no accused has been traced and no trial is taking place, apply directly to the State or District Legal Services Authority under Section 396(4), and track the two-month enquiry period in Section 396(5).
• For immediate medical needs, seek relief under Section 396(6) on a police officer's or Magistrate's certificate. For the offences listed in Section 397, any hospital must treat free of cost.

For the accused and defence advocate

• Compensation under Section 395(3) is ordered "by way of compensation" in addition to the sentence. Material on the accused's means is relevant to the amount; in Hari Kishan the Court named the ability of the accused to pay as a factor, and in Mehtaab it fixed the amount with regard to the accused's limited resources.
• Payment of compensation from a fine waits for the appeal period or the appeal (Section 395(2)).

For hospitals

• Section 397 applies to every hospital "whether run by the Central Government, the State Government, local bodies or any other person". Refusal or delay in treating a listed victim exposes the person in charge to prosecution under Section 200 BNS (non-cognizable and bailable under the BNSS First Schedule).

State amendments: the India Code text of the CrPC prints amendments to Section 357 by Karnataka, Madhya Pradesh and West Bengal that made compensation mandatory where the victim belonged to a Scheduled Caste or Scheduled Tribe (subject to conditions in each). Section 395 BNSS, as enacted in the Gazette, contains no such text. Whether any State has since amended Section 395 was not checked.

Judgments that still matter

Hari Kishan & Anr. v. Sukhbir Singh & Ors., [1988] Supp. 2 S.C.R. 571 (1988 INSC 239) — 25 August 1988. G.L. Oza and K. Jagannatha Shetty JJ. considered a High Court order directing each respondent to pay ₹2,500 to an injured victim and traced it to Section 357(3) CrPC. The Court said the power to award compensation "is not ancillary to other sentences but it is in addition thereto", recommended that all courts exercise it liberally, and said the amount must be reasonable, taking into account "the nature of crime, the justness of claim by the victim and the ability of accused to pay". It raised the compensation to ₹50,000 and modified the High Court's order only to that extent. The report shows no paragraph numbers (the discussion is at pages 576-578). Section 395(3) BNSS repeats Section 357(3), so on a reading of the text the reasoning applies to it.

Suresh & Anr. v. State of Haryana, [2014] 13 S.C.R. 760 (2014 INSC 819) — 28 November 2014. V. Gopala Gowda and Adarsh Kumar Goel JJ. (judgment by Goel J.) dismissed the appeal against conviction and turned to Section 357A. The Court noted the object of the provision (para 12) and was informed that 25 of 29 States had notified schemes (para 13). It held that it is the duty of courts, on taking cognizance, to ascertain whether the victim needs immediate financial relief and, if satisfied, "the Court ought to direct grant of interim compensation, subject to final compensation being determined later", a duty that continues at every stage (para 14). It directed the Haryana State Legal Services Authority to pay the victims' family ₹10 lakh as interim compensation within one month (paras 15-16). Section 396 BNSS repeats Section 357A(1) to (6).

State of M.P. v. Mehtaab, [2015] 1 S.C.R. 1116 (2015 INSC 115) — 13 February 2015. T.S. Thakur and Adarsh Kumar Goel JJ. (judgment by Goel J.) considered a High Court order reducing sentences under Sections 304A and 337 IPC to the ten days already served. Applying Suresh, the Court held that apart from the sentence and fine or compensation paid by the accused, "the Court has to award compensation by the State under Section 357A when the accused is not in a position to pay fair compensation" (para 8). It upheld the High Court's order only on condition that the accused pay ₹2 lakh to the deceased's heirs within six months (in default, six months' rigorous imprisonment), directed interim compensation of ₹3 lakh under Section 357A, and directed the State to pay the entire ₹5 lakh if the accused did not pay (para 10 per the headnote; the body text does not print that paragraph number). The appeal was allowed to that extent (para 11).

Which law applies to your case

Section 531(2)(a) BNSS provides that any appeal, application, trial, inquiry or investigation pending immediately before 1 July 2024 is disposed of or continued under the CrPC "as if this Sanhita had not come into force". On a reading of that text, compensation in a trial pending on that date is ordered under Sections 357 and 357A CrPC, which are in substance the same as Sections 395 and 396. Section 531(2)(b) deems notifications, rules and orders made under the CrPC and in force on that date to have been made under the corresponding BNSS provisions; whether a State's victim compensation scheme made under Section 357A falls within those words is a reading, not something the text states. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 357 CrPC? Section 395 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 357 CrPC. It keeps both routes: applying a fine towards prosecution expenses and compensation (Section 395(1)), and ordering the accused to pay compensation where the sentence has no fine (Section 395(3)). The only textual changes are a corrected clause (1)(a) and an added comma in sub-section (2).

Where did Sections 357A, 357B and 357C CrPC go in the BNSS? Section 357A CrPC is now Section 396(1) to (6) BNSS, Section 357B is now Section 396(7), and Section 357C is now Section 397. Sections 357A to 357C had been inserted into the CrPC in 2009 and 2013; the BNSS keeps them and renumbers the offence lists to BNS sections.

Can a victim get compensation if the accused is acquitted? Yes, through the State scheme. Under Section 396(3) BNSS the trial court may, at the conclusion of the trial, recommend compensation where the case ends in acquittal or discharge and the victim has to be rehabilitated, and the District or State Legal Services Authority decides the quantum under Section 396(2). Compensation from the accused under Section 395 requires a sentence, so it is not available on acquittal.

Can a victim apply for compensation when the offender is never caught? Yes. Section 396(4) BNSS lets the victim or dependents apply to the State or District Legal Services Authority where the offender is not traced or identified, the victim is identified and no trial takes place. Under Section 396(5) the Authority must award adequate compensation after due enquiry, completing the enquiry within two months.

Can a court order interim compensation before the trial ends? Section 396(6) BNSS lets the Legal Services Authority order immediate first-aid or medical benefits free of cost, or any other interim relief, on a certificate of a police officer not below the rank of officer in charge or a Magistrate. In Suresh v. State of Haryana (2014 INSC 819, para 14) the Supreme Court held that courts ought to direct interim compensation under Section 357A CrPC, on application or of their own motion; Section 396 BNSS repeats that text.

Must a hospital treat a rape or acid-attack victim free of cost under the BNSS? Yes. Section 397 BNSS requires every hospital, public or private, to provide first-aid or medical treatment immediately and free of cost to victims of offences under Sections 64 to 68, 70, 71 or 124(1) BNS, or under Sections 4, 6, 8 or 10 of the POCSO Act, 2012, and to inform the police. Contravention by the person in charge is punishable under Section 200 BNS with imprisonment up to one year, or fine, or both.

Which law governs compensation in a trial pending on 1 July 2024? Section 531(2)(a) BNSS provides that a trial pending immediately before the BNSS came into force is continued under the CrPC 'as if this Sanhita had not come into force'. On a reading of that text, compensation in such a trial is ordered under Sections 357 and 357A CrPC, which are in substance the same as Sections 395 and 396 BNSS.

Related

• Victim rights and compensation — CrPC vs BNSS guide
• Appeal against acquittal and the victim's appeal — BNSS 413-419
• Road accidents and hit-and-run — BNS 106 vs IPC 304A
• Sexual offences — IPC vs BNS guide
• Offence before 1 July 2024 — which law applies
• CrPC to BNSS master table
• Sections 353–365 CrPC vs Sections 392–406 BNSS — The Judgment

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 2(1)(y), 395, 396, 397, 398, 399 and 531, and the First Schedule entry for Section 200 BNS.
• Code of Criminal Procedure, 1973 (India Code text): Sections 2(wa), 357 (with the Karnataka, Madhya Pradesh and West Bengal amendments), 357A, 357B, 357C and 358 with their amendment footnotes, and the First Schedule entry for Section 166B IPC.
• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Sections 64 to 71, 124 and 200.
• Indian Penal Code, 1860 (India Code text): Sections 166B and 376(3).
• Judgments read in full text: Hari Kishan v. Sukhbir Singh (S_1988_2_571_578_EN.md); Suresh v. State of Haryana (2014_13_760_795_EN.md); State of M.P. v. Mehtaab (2015_1_1116_1122_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.