Victim Rights and Compensation — Old CrPC vs New BNSS Comparison

In India, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) keeps the CrPC 1973 victim-compensation scheme (Section 357A is now Section 396) and adds rights: a free FIR copy (Section 173(2)), a 90-day progress report (Section 193(3)(ii)), case papers through an advocate (Section 230), a hearing before withdrawal (Section 360) and witness protection schemes (Section 398).

At a glance

"Old" is the Code of Criminal Procedure, 1973 (CrPC); IPC and BNS rows are the Indian Penal Code, 1860 and the Bharatiya Nyaya Sanhita, 2023.

Who is a "victim" — Section 2(1)(y)

"(wa) "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 heir;" — CrPC s.2(wa) (inserted by Act 5 of 2009, w.e.f. 31 December 2009)

"(y) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission of the accused person and includes the guardian or legal heir of such victim;" — BNSS s.2(1)(y)

• Modified — link to the charge removed. The CrPC tied the loss to the act or omission "for which the accused person has been charged". The BNSS ties it to "the act or omission of the accused person". On a reading of the text, a person can now answer the definition before any charge is framed, and whether or not the charge ultimately framed covers the act that injured them.
• Minor edit. "includes his or her guardian or legal heir" becomes "includes the guardian or legal heir of such victim". The gender-neutral wording was already in the CrPC.

The definition matters because it is the gateway to every right below — the FIR copy, the progress report, Section 230 papers, the Section 360 hearing and the Section 413 appeal all run to "the victim".

Information rights: FIR, progress and case papers

FIR copy (Section 173(2)), Expanded. "A copy of the information as recorded under sub-section (1) shall be given forthwith, free of cost, to the informant or the victim." Section 154(2) CrPC gave the copy to "the informant" only. See the Zero FIR guide.

Progress report (Section 193(3)(ii)), New. The police officer "shall, within a period of ninety days, inform the progress of the investigation by any means including through electronic communication to the informant or the victim". The duty to communicate the action taken to the first informant (Section 193(3)(iii)) carries over from Section 173(2)(ii) CrPC, now "in such manner as the State Government may, by rules, provide".

Case papers (Section 230), Expanded. In a case instituted on a police report, the Magistrate must furnish free of cost "to the accused and the victim (if represented by an advocate)" the police report, the FIR, statements under Section 180(3), confessions and statements under Section 183, and other documents forwarded with the report — "without delay, and in no case beyond fourteen days from the date of production or appearance of the accused". Where a document is voluminous, the Magistrate may supply it electronically or allow inspection. Section 207 CrPC covered only the accused and set no period.

Two limits are on the face of Section 230. The right is the victim's only if represented by an advocate. And it applies to cases instituted on a police report; complaint cases triable by the Court of Session fall under Section 231, which speaks only of the accused.

Participation: advocate, withdrawal and appeal

Victim's advocate (Section 18(8), proviso), Identical. "Provided that the Court may permit the victim to engage an advocate of his choice to assist the prosecution under this sub-section." The words are those of the proviso to Section 24(8) CrPC, inserted by Act 5 of 2009. On the words of the proviso, the advocate's role is to assist the prosecution.

Withdrawal from prosecution (Section 360), Modified.

"Provided further that no Court shall allow such withdrawal without giving an opportunity of being heard to the victim in the case." — BNSS s.360, second proviso

Section 321 CrPC had no such proviso. The text gives the victim a hearing, not a veto: the court's consent is still the operative decision. The first proviso, which requires Central Government permission for certain prosecutions, changes in clause (ii) from offences "investigated by the Delhi Special Police Establishment" to offences "investigated under any Central Act".

Victim's appeal (Section 413, proviso), Identical. The victim "shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation", to the court to which an appeal ordinarily lies against a conviction by that court. It repeats the proviso to Section 372 CrPC, in force since 31 December 2009. See victim appeal against acquittal: BNSS 413–419.

Compensation: Sections 395 and 396

The BNSS keeps two separate compensation tracks.

Track 1 — from the accused (Section 395). When a court imposes a fine, it may apply the fine towards prosecution expenses, compensation for loss or injury recoverable in a civil court, compensation to dependants under the Fatal Accidents Act, 1855, or compensation to a bona fide purchaser of stolen property (Section 395(1)). Where the sentence has no fine, the court may order the accused to pay compensation (Section 395(3)). Payment waits for the appeal period or the appeal (Section 395(2)), and any sum paid is taken into account in a later civil suit (Section 395(5)). The text is Section 357 CrPC with one drafting correction in clause (1)(a) and minor punctuation changes.

Track 2 — from the State scheme (Section 396). Sub-sections (1) to (6) reproduce Section 357A CrPC, inserted by Act 5 of 2009:

1. Every State Government, in co-ordination with the Central Government, prepares a scheme to compensate victims or dependants who have suffered loss or injury and require rehabilitation (Section 396(1)).
2. On a court recommendation, the District or State Legal Services Authority decides the quantum (Section 396(2)).
3. The trial court may recommend compensation at the conclusion of the trial where Section 395 compensation is inadequate for rehabilitation, "or where the cases end in acquittal or discharge and the victim has to be rehabilitated" (Section 396(3)).
4. Where the offender is not traced or identified, the victim is identified and no trial takes place, the victim or dependants may apply directly to the Authority (Section 396(4)).
5. The Authority awards adequate compensation after due enquiry, "completing the enquiry within two months" (Section 396(5)).
6. The Authority may order immediate first-aid or medical benefits free of cost, on a certificate of a police officer not below the rank of officer in charge or a Magistrate of the area, or any other interim relief (Section 396(6)).

None of these six features is new; each was in Section 357A(1)–(6) CrPC.

Section 396(7), Modified. Scheme compensation "shall be in addition to the payment of fine to the victim under section 65, section 70 and sub-section (1) of section 124" BNS. Section 357B CrPC, inserted by Act 13 of 2013 and amended by Act 22 of 2018, listed IPC Sections 326A, 376AB, 376D, 376DA and 376DB. Each listed BNS provision requires the fine to be just and reasonable to meet the victim's medical expenses (in Sections 65 and 70, also rehabilitation) and says it "shall be paid to the victim".

Medical treatment: Section 397 and Section 200 BNS

All hospitals, public or private, "shall immediately, provide the first-aid or medical treatment, free of cost" to victims of offences under Sections 64, 65, 66, 67, 68, 70, 71 or 124(1) BNS, "or under sections 4, 6, 8 or section 10 of the Protection of Children from Sexual Offences Act, 2012", and shall immediately inform the police (Section 397). Section 357C CrPC covered the corresponding IPC offences (acid attack and the rape offences) but not the POCSO Act.

The sanction is in the BNS. A person in charge of a hospital who contravenes Section 397 BNSS "shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both" (Section 200 BNS) — non-cognizable, bailable and triable by a Magistrate of the first class under the BNSS First Schedule, as Section 166B IPC was under the CrPC Schedule.

Witness protection: Section 398

"Every State Government shall prepare and notify a Witness Protection Scheme for the State with a view to ensure protection of the witnesses." The CrPC had no counterpart. Section 398 is one sentence: it does not prescribe the scheme's contents, a deadline for notification, or a remedy if a State does not notify one. Whether a particular State has notified a scheme under Section 398 must be checked in that State's gazette; this guide has not verified individual States. Before the BNSS, witness protection rested on the Supreme Court's 2018 direction in Mahender Chawla (below).

What this means in practice

• At the police station. Ask for the free FIR copy under Section 173(2) — the victim is entitled to it even if someone else was the informant. Note the date, so that a missing ninety-day progress report under Section 193(3)(ii) can be followed up in writing.
• Before trial. Put an advocate on record so that the Section 230 papers come to the victim within fourteen days of the accused's production or appearance. Ask the court for permission under the proviso to Section 18(8) if the advocate is to assist the prosecution.
• If the State moves to withdraw. Insist on the Section 360 hearing and file written objections covering the evidence and the victim's position; the court must hear the victim before allowing withdrawal.
• At the end of the trial. Ask the court to consider compensation under Section 395 and to recommend scheme compensation under Section 396(3), including where the case ends in acquittal or discharge. Follow up with the Legal Services Authority against the two-month period in Section 396(5).
• Emergencies. For immediate medical needs, seek first-aid or interim relief under Section 396(6) on a police officer's or Magistrate's certificate; in the offences listed in Section 397, any hospital must treat free of cost.
• After an acquittal or a lenient result. Consider the victim's appeal under the proviso to Section 413.

Judgments that still matter

No Supreme Court judgment construing a BNSS victim-rights provision was read for this guide. These judgments construe the CrPC provisions that the BNSS carries forward in the same or similar words.

Ankush Shivaji Gaikwad v. State of Maharashtra, [2013] 8 S.C.R. 863 (2013 INSC 309) — 3 May 2013. T.S. Thakur J., for a two-Judge Bench, held that Section 357 "confers a power coupled with a duty on the Courts to apply its mind to the question of awarding compensation in every criminal case" (para 50), and summed up: "there exists a mandatory duty on the Court to apply its mind to the question in every criminal case", best shown by recording reasons for awarding or refusing compensation (para 62). Why it matters: Section 395 BNSS repeats Section 357 CrPC, so on a reading of the text the same duty to consider compensation applies.

Mallikarjun Kodagali v. State of Karnataka, [2018] 13 S.C.R. 1 (2018 INSC 969) — 12 October 2018. Three Judges. Madan B. Lokur J., for himself and S. Abdul Nazeer J., held that the date that matters for the victim's appeal is the date of the acquittal order, not of the offence (para 74), that the proviso to Section 372 must be given a meaning "that is realistic, liberal, progressive and beneficial to the victim of an offence" (para 75), that a victim as defined in Section 2(wa) may appeal to the court to which an appeal ordinarily lies against conviction (para 77), and that the proviso, read against Section 378(4), imposes no requirement of special leave on the victim (para 78; the reported headnote records the holding as "Victim can file appeal without seeking leave to appeal"). Deepak Gupta J., partly dissenting, held that a victim appealing against acquittal in the High Court must seek leave under Section 378(3) CrPC. Why it matters: the proviso to Section 413 BNSS is identical to the proviso construed.

Mahender Chawla v. Union of India, [2018] 14 S.C.R. 627 (2018 INSC 1153) — 5 December 2018. A two-Judge Bench (A.K. Sikri and S. Abdul Nazeer JJ.) noted "a paramount need to have witness protection regime, in a statutory form" (para 34), approved the Witness Protection Scheme, 2018, directed the Union, States and Union Territories to enforce it, and declared that "It shall be the 'law' under Article 141/142 of the Constitution, till the enactment of suitable Parliamentary and/or State Legislations on the subject" (para 35(iii)). Why it matters: Section 398 BNSS is the statutory provision that direction anticipated; how far a State scheme notified under it displaces the 2018 Scheme is not answered by the text of Section 398.

Jagjeet Singh v. Ashish Mishra @ Monu, [2022] 4 S.C.R. 536 (2022 INSC 427) — 18 April 2022. A three-Judge Bench (N.V. Ramana CJI, Surya Kant and Hima Kohl JJ.; Surya Kant J. writing) held that a victim within the meaning of the CrPC "has a legally vested right to be heard at every step post the occurrence of an offence" (para 24), that victims' rights are "substantive, enforceable" (para 23), and that victims who come forward must be given a fair and effective hearing, including at the bail stage (para 25). The High Court's bail order was set aside and the matter remitted (paras 38, 46). Why it matters: the BNSS writes several of these participation points into the text (Sections 173(2), 193(3)(ii), 230, 360), and its definition of victim no longer depends on the charge.

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, continued or held under the CrPC "as if this Sanhita had not come into force". On a reading of that text, a withdrawal application or compensation recommendation in a trial pending on 30 June 2024 is governed by the CrPC, where most of the rights are the same. 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 victim compensation scheme made under Section 357A falls within those words is a reading, not something the text states. Section 358(2) BNS preserves penalties incurred under the IPC and lets them be imposed "as if that Code had not been repealed"; on a reading of that text and Article 20(1) of the Constitution, a hospital's refusal of treatment before 1 July 2024 falls under Section 166B IPC, not Section 200 BNS. See offence before 1 July 2024: which law applies.

Frequently Asked Questions

Can a victim get compensation if the accused is acquitted?

Yes, through a court recommendation. 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; the District or State Legal Services Authority then decides the quantum under the State scheme (Section 396(2)). Section 357A(3) CrPC said the same, so this is not new.

Can a victim apply directly to the Legal Services Authority for compensation?

Only in one situation. 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. In other cases the route in the text is a court recommendation under Section 396(2) or (3).

How quickly must the Legal Services Authority decide a compensation claim?

Section 396(5) BNSS requires the State or District Legal Services Authority, on a recommendation or an application under Section 396(4), to award adequate compensation after due enquiry, completing the enquiry within two months. Section 396(6) separately allows immediate first-aid or medical benefits free of cost, or other interim relief, on a certificate of a police officer not below the rank of officer in charge or a Magistrate.

Must the court hear the victim before allowing the prosecution to withdraw?

Yes. The second proviso to Section 360 BNSS says no Court shall allow withdrawal from prosecution without giving an opportunity of being heard to the victim in the case. Section 321 CrPC had no such proviso. The text requires a hearing, not the victim's consent; the decision remains the court's.

Does a victim get the chargesheet and case papers under the BNSS?

A victim represented by an advocate does. Section 230 BNSS requires the Magistrate to furnish the police report, the FIR, statements under Section 180(3), confessions and statements under Section 183 and other forwarded documents, free of cost, to the accused and the victim (if represented by an advocate), within fourteen days of the accused's production or appearance. Section 207 CrPC covered the accused only.

Can a victim appeal against an acquittal?

Yes. The proviso to Section 413 BNSS repeats the proviso to Section 372 CrPC: the victim may appeal against an order acquitting the accused, convicting for a lesser offence or imposing inadequate compensation, to the court to which an appeal ordinarily lies against a conviction by that court. The proviso has been in the CrPC since 31 December 2009 (Act 5 of 2009).

What happens if a hospital refuses free treatment to a rape or acid-attack victim?

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 Sections 4, 6, 8 or 10 of the POCSO Act, and to inform the police. A person in charge of a hospital who contravenes Section 397 is punishable under Section 200 BNS with imprisonment up to one year, or fine, or both (formerly Section 166B IPC).

Related

• Appeal against acquittal and the victim's appeal: BNSS 413–419
• Zero FIR and mandatory FIR provisions: BNSS vs CrPC
• Timelines for investigation and trial under the BNSS
• Offences against women: IPC vs BNS
• Offence before 1 July 2024: which law applies
• Section 207 CrPC vs Section 230 BNSS — Supply of Police Report and Documents to the Accused (CrPC 207-208)
• Sections 326A and 326B IPC vs Section 124 BNS — Acid Attack
• Sections 166A and 166B IPC vs Sections 199 and 200 BNS — Public Servant Disobeying Direction under Law; Non-treatment of Victim
• Section 378 CrPC vs Section 419 BNSS — Appeal Against Acquittal (CrPC 372, 378)
• Section 357 CrPC vs Section 395 BNSS — Victim Compensation (CrPC 357-357C)
• Section 321 CrPC vs Section 360 BNSS — Withdrawal from Prosecution
• Sections 353–365 CrPC vs Sections 392–406 BNSS — The Judgment
• Section 2 CrPC vs Section 2 BNSS — Definitions

Sources

• Acts and sections read: BNSS 2023 ss.2(1)(y), 18(8), 173(2), 193(3), 230, 231, 360, 395–398, 413, 531 and the First Schedule entry for BNS s.200 (Gazette CG-DL-E-25122023-250884); BNS 2023 ss.65, 70, 124(1), 200 and 358 (Gazette CG-DL-E-25122023-250883); CrPC 1973 ss.2(wa), 24(8), 154(2), 173(2), 207, 321, 357, 357A–357C and 372 with their amendment footnotes, and the First Schedule entry for IPC s.166B; IPC 1860 s.166B (original India Code texts).
• Judgments read (Veritect judgment corpus, full text): Ankush Shivaji Gaikwad v. State of Maharashtra (2013_8_863_913_EN.md); Mallikarjun Kodagali v. State of Karnataka (2018_13_1_46_EN.md); Mahender Chawla v. Union of India (2018_14_627_664_EN.md); Jagjeet Singh v. Ashish Mishra (2022_4_536_555_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.