There is a lack of judicial pronouncements and legislative research that provide a rational understanding of why there is a need for compounding sexual offences except for offences that fall under the category of heinous crimes. There is even less clarity on how and when they can be compounded. The 41st Report of India’s Law Commission recommended making the offence of assault or criminal force on a woman with intent to outrage her modesty compoundable, without providing any justification as to why it is needed. The 154th Report of India’s Law Commission recommended making cruelty on a woman by her husband or his relatives (S.498A of Indian Penal Code) compoundable. But, same as before, it did not outline any guidelines about the procedure. The 237th Report of the Law Commission of India again failed to elaborate on the procedure and the requirements for legal compounding of an offence. Advocates have overcome this lacuna in the legislation with the aid of S. 482 of The Code of Criminal Procedure (CrPC). They have approached the Court under this provision, and the Courts have made accommodations as and when they have deemed it necessary. Nevertheless, there is a need for concrete guidelines to ensure that the ends of justice are fully met.
The need for compounding sexual offences except for offences that fall under the category of heinous crimes
Considering the grim, ground reality of the existing law enforcement system in India and the long and tedious road to justice, there is a dire need for compounding sexual offenses; with the exception of heinous crimes. In the recent judgment of Shilpa Mittal v. State of NCT of Delhi and Ors., the Supreme Court reiterated its stand on the definition of heinous crimes. Only those crimes for which the minimum punishment is seven years or more in the Indian Penal Code (IPC) or any other law in force shall come under the category of ‘heinous’ crimes.
The need to compound sexual offenses arises from the acute lack of conviction in sexual offenses. This is because of several factors that come into play. In most cases, during the course of the trial, the witnesses turn hostile. In the case of Maru Ram v. The Union of India, the learned Judge had observed that in most cases, not only strangers but even immediate family members and neighbors turn hostile as the trial proceeds. The threat meted out to them by the hardened and professional criminals and the lack of an effective witness protection program result. Due to lack of evidence and the witnesses turning hostile, most of the time, the sentence awarded is reduced to the extent that it is nothing as compared to the offense that has been committed.
Compounding the offense shall result in the criminal being at large. The principal purpose of justice, which is deterrence and preservation of the society’s sense of security, shall remain unfulfilled. But the unfortunate, yet undisputed fact remains that the condition of prisons in India is such that by the time a prisoner leaves the prison, the chances of him/her feeling remorse for his/her actions are next to nothing. If prisons successfully inculcated repentance in the criminals, then most prisoners wouldn’t have a record of past crimes against their name. But that is not the case. In addition to this, even after the existence of fast-track courts, criminal trials drag on for years. Justice delayed is justice denied; compounding of the offense at the victim’s option shall deliver justice at a swifter date.
Taking into account, all the factors stated above; it won’t be surprising, if a victim would instead reach a settlement in which he/she is gratified in some tangible way instead of choosing reformative justice. The learned Judge, taking into consideration the financial standing of the perpetrator and the facts of the case, can order a settlement that does justice to the crime committed. The awarding of the compensation could be done in the manner maintenance is awarded in divorce cases; taking into account the perpetrator’s financial status and the suffering caused to the victim. Needless to say, no amount of money can ever compensate for the trauma caused to the victim. Still, the tangible gratification will invariably be much more beneficial to the victim than a prison sentence of an insignificant time period. To make the stand clear, I advocate compounding sexual offenses only when it is evident to the learned Judge that an offense has been committed. But due to the inefficiency of law enforcement officials, witnesses, and evidence tampering, the Judge cannot bring the perpetrator to justice through reformative means.
The Indian criminal justice system is such that the accused has been bestowed upon with several rights, right from the notion of ‘innocent until proven guilty’ to the right to representation and protection of life and personal liberty, except in accordance with the procedure established by law. Whereas, the victim is a mere onlooker of the proceedings. In the case of Rieman v. Morrison, it was concisely observed by the learned Judge that compounding is nothing but giving the agency back in the hands of the victim to choose an outcome that is more restorative than retributive in nature. Compounding an offence at the option of the victim, balances the power play to an extent and gives the victim a say in the matter.
In a society as diverse as India, there cannot be a straitjacket formula to serve justice to a crime that is sexual in nature. The purpose of justice can be fulfilled only if he/she is in a better position than they were when they approached the Court. Bearing in mind that when a crime of this intensity takes place, society is scandalized as well. But the purpose of justice will be fulfilled only when the victim is compensated to some acceptable extent. The victim should be allowed a free hand to decide if he/she wants reformative justice or a settlement. The settlement of a sexual offense must be done under the supervision of the learned Judge. This would ensure a fair settlement, devoid of undue influence, and that too only in cases where justice through reformative means is inadequate. Therefore, it is high time that concrete guidelines are developed to compound sexual offences to ensure that the ends of justice are fully met.
 Law Commision Report of India,Report no 41, Vol 1 (1969) < https://lawcommissionofindia.nic.in/1-50/Report41.pdf>
 Law Commision Report of India, Report no 154, Vol 1 (1996) < https://lawcommissionofindia.nic.in/101-169/Report154Vol1.pdf>
 Law Commision Report of India, Report no 237, (2011) <https://lawcommissionofindia.nic.in/reports/report237.pdf>
 Shilpa Mittal v. State of NCT of Delhi and Ors.  < https://indiankanoon.org/doc/187771162/>
 Maru Ram v Union of India  1980 AIR 2147, 1981 SCR (1)1196
 Recidivism, Chapter 11 <https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/11-Recidivism_2012.pdf>
‘Law Gives 60 Days for Rape Trial; Delhi Court Takes 240 for Survivor Statement’ (News 18 India, 24 June 2017) < https://www.news18.com/news/india/law-gives-60-days-for-rape-trial-delhi-court-take-240-for-survivor-statement-1442305.html>
 Rieman v. Morrison  Supreme Court of Illinois, United States
Author : Vibhu Gautam
Maharashtra National Law University, Mumbai