Section 395 of BNSS, 2023 — Order to Pay Compensation

Introduction

Section 395 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with the power of a criminal court to order payment of compensation to persons who have suffered loss or injury because of an offence. It also permits a court to direct that the whole or part of a fine imposed on the accused be used for specified purposes, including compensation.

The provision substantially corresponds to Section 357 of the Code of Criminal Procedure, 1973.

Meaning of Section 395 BNSS

Section 395 empowers the Court, while passing judgment, to direct how a fine imposed on the accused may be utilised. The Court may direct the whole or part of the fine towards prosecution expenses or compensation to persons who have suffered loss or injury.

The provision also allows compensation to be ordered even where the sentence does not include a fine.

Statutory Basis

The provision is contained in Section 395 of the Bharatiya Nagarik Suraksha Sanhita, 2023, under Chapter XXIX dealing with the judgment.

The section contains five sub-sections dealing with:

• application of fine towards prosecution expenses and compensation;
• postponement of payment where an appeal is possible;
• compensation where the sentence does not include a fine;
• power of appellate and revisional courts to make a compensation order; and
• adjustment of compensation in a subsequent civil suit.

Order for Application of Fine

When a Court imposes a sentence of fine, or a sentence including a fine, it may direct that the whole or part of the fine recovered be applied in specified ways.

1. Expenses of Prosecution

The Court may direct that the fine be used for defraying expenses properly incurred in the prosecution.

2. Compensation for Loss or Injury

The Court may direct payment of compensation to a person who has suffered loss or injury because of the offence, where the Court considers that such compensation is recoverable by that person in a Civil Court.

3. Cases Involving Death

Where a person is convicted for causing the death of another person, or for abetting such an offence, the Court may direct payment of compensation to persons entitled to recover damages under the Fatal Accidents Act, 1855.

4. Compensation to Bona Fide Purchaser

Where the conviction concerns offences such as theft, criminal misappropriation, criminal breach of trust or cheating, or certain forms of dealing with stolen property, compensation may be directed to a bona fide purchaser who suffers loss when the property is restored to the person legally entitled to it.

Compensation Where There Is No Fine

Section 395(3) provides an important additional power.

Where the Court imposes a sentence in which fine does not form a part, the Court may still order the accused to pay compensation to a person who has suffered loss or injury because of the act for which the accused has been sentenced.

Therefore, compensation under Section 395 is not restricted only to cases where a fine forms part of the sentence.

Effect of Appeal

Where the fine is imposed in a case that is subject to appeal, the amount directed to be paid under Section 395 cannot be paid before:

• the period allowed for filing the appeal has expired; or
• where an appeal is filed, the appeal has been decided.

This protects the amount of compensation from being disbursed before the appellate process reaches the relevant stage.

Powers of Appellate and Revisional Courts

Section 395(4) extends the power to make an order for compensation beyond the trial Court.

Such an order may also be made by:

• an Appellate Court;
• the High Court; or
• the Court of Session while exercising its revisional powers.

Subsequent Civil Suit

Section 395(5) prevents double recovery of compensation for the same loss.

If a subsequent civil suit concerns the same matter, the civil court must take into account any amount already paid or recovered as compensation under Section 395.

Thus, compensation awarded in the criminal proceeding is relevant when determining compensation in subsequent civil proceedings.

Nature of the Power

The language of Section 395 is discretionary. The Court may order the whole or part of the fine to be applied towards the purposes specified in the section.

Therefore, compensation is not automatically payable in every case merely because the accused has been convicted or fined. The Court exercises its statutory discretion according to the circumstances of the case.

Important Distinctions

Fine and Compensation

A fine is a punishment imposed on the accused as part of the criminal sentence. Compensation is intended to provide monetary redress to a person who has suffered loss or injury.

Section 395 permits the Court to utilise the fine, wholly or partly, for compensation in appropriate cases.

Compensation under Section 395 and Civil Compensation

Compensation ordered under Section 395 arises from the criminal proceeding. A person may also have a civil remedy for the same loss.

Where a subsequent civil suit is filed concerning the same matter, the amount already paid or recovered as compensation under Section 395 must be taken into account.

BNSS and CrPC

Section 395 of BNSS substantially corresponds to Section 357 of the Code of Criminal Procedure, 1973.

The basic framework continues under BNSS: criminal courts can direct the application of fine towards prosecution expenses or compensation and can also order compensation in cases where no fine forms part of the sentence.

The principal significance of the BNSS provision is therefore the continuation of the established compensation mechanism within the new criminal procedural framework.

Relationship with Section 396 BNSS

Section 395 should be distinguished from Section 396 BNSS, which deals with the victim compensation scheme.

Section 395 concerns compensation orders made by the criminal courts in connection with the sentence and fine, whereas Section 396 provides for a victim compensation scheme to be prepared by the State Government in coordination with the Central Government.

Example

Suppose an accused is convicted for an offence that causes financial loss to the victim and the Court imposes a fine. If the statutory conditions are satisfied, the Court may direct that the whole or part of the recovered fine be paid as compensation to the victim.

Even where the sentence does not include a fine, the Court may, under Section 395(3), order the accused to pay a specified amount as compensation to the person who suffered loss or injury.

Topic at a Glance

• Topic: Order to Pay Compensation
• BNSS Section: Section 395
• Purpose: To enable criminal courts to direct payment or application of amounts towards compensation and specified expenses.
• Fine: Whole or part of the fine may be directed towards specified purposes.
• No-fine sentence: Compensation may still be ordered under Section 395(3).
• Appellate power: Appellate Courts may make compensation orders.
• Revisional power: High Court or Court of Session may make such orders while exercising revision.
• Civil proceedings: Compensation already paid or recovered must be considered in a subsequent civil suit concerning the same matter.
• Corresponding CrPC provision: Section 357 CrPC.

Quick Revision

• Section 395 BNSS deals with Order to Pay Compensation.
• The Court may direct the whole or part of a fine towards prosecution expenses or compensation.
• Compensation may be awarded for loss or injury caused by the offence.
• Special provisions cover cases involving death and bona fide purchasers of stolen property.
• Compensation may be ordered even when the sentence does not include a fine.
• Payment may be postponed where an appeal is available or has been filed.
• Appellate and revisional courts may also make compensation orders.
• Compensation already paid under Section 395 must be considered in a subsequent civil suit concerning the same matter.
• Section 395 substantially corresponds to Section 357 CrPC.
• Section 395 should be distinguished from Section 396 BNSS, which deals with the victim compensation scheme.

ALSO READ: Section 394 – Order for notifying address of previously convicted offender

Conclusion

Section 395 BNSS provides an important mechanism through which criminal courts can direct monetary amounts towards compensating persons who suffer loss or injury because of an offence. It preserves the established criminal-procedure framework for compensation while expressly permitting compensation even where the sentence does not include a fine. The provision also coordinates criminal compensation with subsequent civil remedies by requiring previously paid compensation to be taken into account.