LNCT University Bhopal, MP ASSIGNMENT SUBMISSION: IN THE PARTIAL FULFILLMENT OF 3RD SEMESTER 2021 VICTIM ORIENTED CRIMINAL JUSTICE SYSTEM: A CRITICAL APPRAISAL SUBMITTED BY: Harshal Gupta LN20LLM11004 3RD SEMESTER / 2ND YEAR TABLE OF CONTENTS CHAPTER 1 ............................................................................................................................ 1 INTRODUCTION ................................................................................................................... 1 1.1Introductory 1 1.2 Scope of the study 2 1.3 Purpose and Objective of the study 2 1.4 Research Questions 3 1.6 Chapterization Plan 3 CHAPTER 2 ............................................................................................................................ 4 VICTIM ORIENTED CRIMINAL JUSTICE SYSTEM: MEANING &CONCEPT ........... 4 2.1 Meaning of Victims of Crime 4 2.2 Historical origin of criminal justice for victims 5 2.3 Need of victim oriented approach 6 2.3.1 Physical victimization 6 2.3.2 Financial Victimization 7 2.3.3 Psychological Victimization 7 2.3.4 Social victimization 8 2.4 Rights of the Victims of Crime 8 CHAPTER 3 .......................................................................................................................... 10 VICTIM ORIENTED CRIMINAL JUSTICE SYSTEM: LEGAL FRAMEWORK .......... 10 3.1 Statutory Provisions 11 3.1.1 Provisions under CrPC, 1973 11 3.1.2 Criminal Law Amendment Act, 2008 13 3.1.3 Criminal Law Amendment Act of 2013 16 3.1.4 Probation of Offenders Act, 1958 (P.O.A.) 16 v 3.2 Role played by the judiciary 17 3.2.1 Under Code of Criminal Procedure 17 3.2.2 Under Indian Constitution 20 CHAPTER 4 .......................................................................................................................... 24 SHORT COMINGS IN INDIAN CRIMINAL JUSTICE SYSTEM: VICTIM PERSPECTIVE ..................................................................................................................... 24 4.1 Pitfalls in Criminal Justice System: Victim perspective 24 4.1.1 Right to mobilize the Criminal Justice System 24 4.1.2. Right & Status of Victim during Investigation 26 4.1.3. Rights & Status of Victim during Trial 27 4.1.4. Rights & Status of Victim after Judgment 28 CHAPTER 5 .......................................................................................................................... 30 SUGGESTIONS & CONCLUSION..................................................................................... 30 BIBLIOGRAPHY ............................................................................................................... VIII vi Cases A.K. Singh v. Uttarakhand Jan Morcha, (1999) 4 S.C.C. 476 ........................................ 22 Balraj Singh v. State of U.P., (1994) 4 SCC 29.............................................................. 19 Bhim Singh v. State of J&K, AIR 1986 SC 498.............................................................. 19 Bodhi Satta Gautam v. Subhra Chakraborty, AIR 1996 SC 922 .................................... 20 Chairman, Railway Board v. Chandrima Das, (2000) 1 S.C.C. 465............................... 22 D.K. Basu v. State of West Bengal, AIR 1997 SC 610.................................................... 22 Delhi Domestic Working Forum v. UOI, (1994) 4 SCALE 608 ..................................... 21 Gudalure Cherian v. UOI, (1992)1 SCC 397................................................................. 20 Harikishan and State of Haryana v. Sukhbir Singh and others, AIR 1988 SC 2131. ...... 18 Lalita Kumari v. State of U.P., (2014) 2 SCC 1 ............................................................. 24 Meja Singh v. SHO Police Station Zira, 1991 ACJ 439 ................................................. 19 Mrs. Cardinho v. Union of India, 1989 MhLJ 1101. ...................................................... 20 Nilabati Behra v. State of Orissa, AIR 1993 SC 1960.................................................... 19 Palaniappa Gounder v. Sate of Tamil Nadu, 1977 AIR 1323. ........................................ 16 Prabhu Prasad Sah v. State of Bihar, AIR 1977 SC 704................................................ 16 Rattan Singh v. State of Punjab, AIR 1980 SC 84............................................................ 9 Rudal Sah v. State of Bihar, AIR 1983 SC 1086. ........................................................... 19 SAHELI v. Commissioner of Police, Delhi, AIR 1990 SC 513. ...................................... 20 Sakiri Vasu v. State of U.P., 2008 AIR SCW 309. ......................................................... 26 Sarwan Singh v. State of Punjab, AIR 2000 SC 362. ..................................................... 17 State of Andhra Pradesh v. Chalia Ramakrishna Reddy, AIR 2000 SC 2083 ................. 22 State of Maharashtra v. Christian Community Welfare Council of India, AIR 2004 SC 7. .................................................................................................................................. 21 vii CHAPTER 1 INTRODUCTION “For too long, the law has centered its attention more on the rights of criminal than on the victims of the crime. It is high time we reverse the trend and put the highest priority on the victims and potential victim.” -Gerald R. Ford1 1.1 Introductory In an adversarial system like India, criminal cases become a contest between the accused and the State, represented by the Public Prosecutor. There is very little role envisaged for the victim, who is the most affected by the crime. His plight is forgotten in the battle for supremacy between the State and the accused. Instead of being the focus of the debate, he becomes the mere cause for it. 2 One of the greatest tests of the quality of our justice systems is how well we treat our victims - appropriate treatment is a demonstration of our societies‟ solidarity with each individual victim and recognition that such treatment is essential to the moral integrity of society. It is therefore crucial not only to combat and prevent crime, but also to properly support and protect individuals who do fall victim to crime.3 To administer the criminal law efficiently, effectively and even-handedly is a fundamental obligation of any State governed by rule of law. This function is an attribute of the sovereign power of the State. The quality of governance in a democratic country is judged inter alia, by the manner in which the criminal justice system is administered, and its effectiveness. The desideratum of any system dealing with crimes and punishment is to impart a sense of security and safety to the people-whether it be inhabitants of the country or alien citizens visiting the country. As the society has a legitimate expectation 1 2 3 Retrieved from < https://www.academia.edu/6404665/AN_ANALYTICAL_ STUDY_ON_RESTORATI Justice (Retd.) P.V. Reddi, Role Of The Victim In Criminal Justice Process, 18 Student B. Rev 1 2006, p.1, retrieved from <http://www.heinonline.org> on 28th March 2015 at 4:38 pm. Retrieved from <http://ec.europa.eu/justice/criminal/victims/rights/index_en.htm> on 23rd February 2015 at 3:00 pm. 1 of the State ensuring effective operation of the criminal justice system to promote common good and a hassle free atmosphere, the failures or inadequacies in the criminal justice system or its apparatus are bound to have an adverse effect on the life and conduct of the people.4 Reforms toward victim oriented criminal justice system hinged on the amendment made to the Indian Criminal Procedure Code of 1973 in 2008. These amendments were undertaken by the government in order to reform India‟s archaic criminal laws. The major thrust of the victim related amendments were on defining „victim‟ and recasting existing defunct laws related to the provision of compensation to victims. 5 Unfortunately the major fallacy of the recent law is that it once again seems to leave the provision of compensation to the sole discretion of the judge. The prime focus of this paper would be an analysis of the above-mentioned amended law and the shortcomings of the same. 1.2 Scope of the study This project throws light on the rights of the victim in the Indian Criminal Justice System and argues for making him an important player in the system, instead to relegating him to the sidelines. Not only will this provide much needed relief and succour to the victims, but will also help in the proper implementation of criminal justice in India. Further, this project makes highlights the recent legal developments for protection of his rights and makes a case for providing effective justice to the victim by supplementing her participation in criminal proceedings, with compensation for damages suffered due to the crime, and support services to ensure her proper recovery and rehabilitation. 1.3 Purpose and Objective of the study The main objective behind this project is to highlight the dire need to recognize the victim as a key player in the criminal justice system and to suggest ways and means of making the criminal justice delivery mechanism victim friendly and sensitive, so that it can meet the challenges faced by the victim and provide effective justice to those affected by crime. 4 5 Supra note 2, p.3. Jhalak Kakkad and Shruti Ojha, An Analysis of the Vanishing Point of the Indian Victim Compensation Law, Journal of Indian Law & Society, Vol.2, 2011-12, retrieved from <http://jils.ac.in/wp-con tent/upload s/2011/12/Jhalak-Kakkar-and-Shruti-Ojha.pdf> on 23rd March 2015 at 4:15 pm. 2 1.4 Research Questions Various research questions stressed upon in this project report are: (i) Whether the victims of crime have a major role to play in criminal justice system? (ii)Whether there is a need to recognise the rights of the victim equally as those of the accused? (iii) Whether the power of the Court to award victim compensation should be discretionary or not? 1.5 Database and Research Methodology The database used in the present project is limited to secondary sources. The present project relies for its research on various books, newspaper reports, articles in different legal journals and the material available online. The methodology of research is secondary in nature and it does not involve any field work. 1.6 Chapterization Plan This project deals with five chapters. The First Chapter highlights the need to discuss the concept of victim of crime and need of victim orientation in criminal justice in Indian scenario. It also consists of scope, object and purpose of study. Further the chapter deals with research questions needed to be answered by the researcher, research methodology employed by the researcher in the completion of the project. Further it deals with chapterization plan followed in the project. The Second Chapter deals with the meaning, historical aspect of victim of crime also highlighting need of victim oriented approach in the light of victimization of the victims of the crime. The Third chapter discusses the statutory framework in India and the role played by judiciary in protecting the rights of the victim. The fourth chapter highlights the inherent lacunae in the implementation of victim oriented provision in the Criminal Code. Lastly, the Fifth Chapter concludes the project by discussing certain suggestions for a great and more pro-active role of the victim in criminal justice to protect his rights. 3 CHAPTER 2 VICTIM ORIENTED CRIMINAL JUSTICE SYSTEM: MEANING & CONCEPT Before discussing in detail various aspects of victim oriented criminal justice system it is expedient to understand clearly the meaning of the word „victim‟ of crime. The meaning of the term „victim of crime‟ was not defined in the Indian Criminal Laws for a very long time. However, the word has been defined in many international instruments protecting the interest of the victims. It was by the Criminal Law Amendment Act of 2008 that the word „victim‟ was defined in India under section 2(wa) of CrPC. Its meaning and various definitions are discussed below. 2.1 Meaning of Victim of Crime „Victim‟ comes from Latin, and it has two meanings one is the sacrifice offered in ritual; the other is an individual, organization, morality, or law which is hurt or interrupted by others. In modern procedure law the victim follows the second meaning. There are different comprehensions in different law relations. For example, like administration victim, judicatory victim and criminal victim. The victim has different meaning in different language environment. Regardless in what law relationship, the victim always has the meaning of legal right being infringed. 6 „Victim‟ for our purpose of study deals with injury or damage resulting from criminal activity. The expression „victims of crime‟ refers to any person, group or entity who has suffered injury, harm or loss due to illegal activity of someone. The harm or injury may be physical, psychological or financial. Such a person may be called a „primary victim‟. There may be secondary or tertiary victims who suffer because of the harm caused to the primary victim. 7 The legal definition of the term „victim‟ typically includes- 6 TIAN Sheng-Bin, Protecting the Procedural Rights of the Victim, 5 US-China Law Review 32 2008, p.2, retrieved from <http://www.heinonline.org> on 31st March 2015 at 5:40 pm 7 Prof. N.V. Pranjape, Criminology & Penology with Victimology, Central Law Publications, Allahabad, 2012, p.665. 4 “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 their”8 The definition of the word „victim‟ in section 2(wa) inserted by Criminal Laws (Amendment Act 2008) in Cr.P.C is quite narrower than that of international approach in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power 9 which provides that –„victims of crime‟ are “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative in Member States, including those laws prescribing criminal abuse of power.”10 This Declaration further specifies that“A person may be considered a victim under this Declaration, regardless of whether the perpetrator is indentified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term „victim‟ also includes where appropriate, the immediate family or the dependants of the victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.”11 Hence, the definition of „victim‟ under this declaration is very wide and clear as it also includes secondary and tertiary victims. Furthermore it holds that the identification or prosecution etc., of the perpetrator is irrelevant under this Declaration. 2.2 Historical origin of criminal justice for victims Historically, the credit for founding the study of victim is usually given to Benjamin Mendelson12 a Romanian Attorney, whose first study of victim was published in a Belgium criminology journal in 1937. According to him, the victim of crime is no longer 8 Section 2(wa), The Code of Criminal Procedure, 1973. Universal Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A. Res. 40/34, U.N. Doc.A/RES/40/34 (Dec.11, 1985). 10 Article 1, ibid. 11 Article 2, ibid. 12 Bharat B Das, A Study of Definition and Scope of Victimology, Modern Thoughts on Victimology & Crimes: A Comparative Study, University Book House Pvt. Ltd., Jaipur, 1997. 9 5 a passive object but becomes an active object in the process of criminalisation and decriminalisation. 13 The point at issue is no longer exclusively the human rights of the offender but definitely and quite seriously the human rights of the victim too. Jeremy Bentham 14, (1748-1832) had pleaded for victim compensation with a view to provide additional punishment and deterrence for the offender. For Raffael Garofolo 15, (1852-1934), the positivist, restitution had become indeed a distinct shift of emphasis, a forceful means of social defence against the law breakers. Finally, Reflection of Sara Margery Fry 16 on restitution centred on the reconciliation of the offender with the victim. 2.3 Need of victim oriented approach The victims of crime suffer from various kinds of victimizations. It is a situation where victim suffers because of the fact that the crime was committed on him. Victimisation may be of varied forms. Thus, to restore the same state of the victim as it was before the crime was committed on him, it is very essential to protect his rights. The impact of victimization on the victim may take varied forms. Impact on the victim may be physical, financial, psychological or social. 2.3.1 Physical victimization In the process of preventing the incident the victim incurs wide variety of physical injuries during the resistance put up. 17 The injuries caused by knife, firearms etc., are usually fatal and more damaging. There may be some physical injuries which have a permanent effect whereas some are temporary i.e. healable in course of time. Another significant physical impact of crime on victim is a number of physical reactions to the crime to which he has fallen a victim. These may include hyper-tension, increased heart beats, numbness etc. at the time of crime being committed against a person, he/she 13 Supra note 12. Ibid. 15 Ibid. 16 Ibid. 17 Sindhu Vijaya Kumar, Rape Crime, Law and Victim‟s Right: An Analysis from Indian Penal System, 2010 Acta U. Danubius Jur. 74 2010, retrieved from <http://www.heinonline.org> on 18th March 2015 at 11:45 pm. 14 6 either has to fight the perpetrator by offering resistance to him or to subdue and meekly fall a prey to his criminal act. Many a times, the physical reaction may not occur until the threat or danger has passed away. 18 2.3.2 Financial Victimization The financial impact of crime on the victim may be in any one or more of the following forms Costs and expenses incurred in medical treatment for physical injuries; Damage to property or articles in possession; Litigation cost incurred in fighting against the crime and criminal; Employment loss or financial suffering due to loss of earnings; Funeral or burial expenses, if any; In some cases, the victim may be compelled to move or shift elsewhere for security or other reasons. Here, he has to bear additional costs of shifting and resettling elsewhere. 19 2.3.3 Psychological Victimization Where the victim is confronted with the crime perpetrator immediate reaction will be anger or fear depending on his physical strength and capacity to face the misfortune. Shock and mental trauma follow subsequently after the crime has been committed and the victim regains his senses. He gets so distresses that he loses self confidence and self esteem and life seems to have no meaning for him. The psychological impact of victimization is clearly reflected in the behavioural responses of the crime victim, which may include increased alcoholism, excessive use of drugs, segregation of social relationships or social withdrawal etc. There may, however be some victims who are able to shed aside their distress and shock and return to normal life in course of time. The capacity of the victims to cope with the effects of crime varies with his mental frame. While some victims may develop a serious post-traumatic stress, others may not be so affected. The former is common in victims of sexual offences like 18 19 Supra note 7, p.670. Ibid., p.671. 7 rape where people blame the victim for her having „walked alone‟ or „dressed attractively‟. 20 2.3.4 Social victimization Social victimization generally occurs in cases of sexual offences like rape. Rape has quit a far reaching implication on the victim‟s plane. The implications of the rape depend upon her age, marital status etc. If the victim is the child of the young age, the impact depends not only on the volume of psychological pain but psychological complication also varies with age. In case of unmarried, women it would create a problem in the settlement of her marriage, in case with married women there would be a possibility of breakdown of her marriage. Even if the marital life continues or the marriage of an unmarried happens to be solemnized the sword of the fear of rape being divulged as a consequence marriage would be disturbed when it becomes known always hangs over the head. 21 Researches on victimology have shown that the effect of victimization is particularly too hard on poor, disabled and socially neglected people. In many cases, it so happens that once a victim has fallen a prey to a crime, he/she is susceptible to a subsequent victimization by the same crime or other form of crime. This is often true in case of victims of rape. These repeat victims find it difficult to get out of the clutches of the perpetrator of the crime. 22 Thus to prevent protect a victim against various kinds of victimizations it is very necessary to protect the rights of the victim in any criminal justice system. 2.4 Rights of the Victims of Crime Most of the jurisdictions throughout the world recognise certain basic rights of the victim. Among others, these rights include: Right to attend the court proceedings. Right to compensation for the victim by the offender or by the state. Right to be heard during criminal justice proceedings that affect their interests. 20 Weisaeth & I. Lind, Article in proceedings of the 2nd International Conference held in Swedish Defence Research Institute, Stockholm, 1990, p.1707, retrieved from <http://www.victimsofcrime.org> on 25th March 2015 at 3:30 pm. 21 Supra note 17. 22 Supra note 7, p. 671. 8 Right to be informed of important, scheduled criminal proceedings and the outcomes of those proceedings. 23 Right to privacy of the victim. Right to protection during criminal justice proceedings. Right to restoration of the harm caused by the offender. Right to return of the property of the victim. Right to a speedy trial. Right to enforcement of their rights. 23 Retrieved from <https://www.victimlaw.org/victimlaw/pages/victimsRight.jsp> on 26th February 2015 at 5:35 pm. 9 CHAPTER 3 VICTIM ORIENTED CRIMINAL JUSTICE SYSTEM: LEGAL FRAMEWORK The criminal justice system in India, based on the adversarial model, focuses heavily on the offender and his rights. The plea of innocence, of rights against arbitrary arrest, of fair trial and adequate legal aid services are, amongst others, various measures designed to ensure the human rights of the accused. The development of this edifice has been a significant step in the Indian criminal law framework. However, a consequential grey area has been the neglect and apathy of the system towards the victims. As lamented by Krishna Iyer J.“It is a weakness of our jurisprudence that victims of crime and the distress of the dependants of the victim do not attract the attention of law. In fact, the victim reparation is still the vanishing point of our criminal law. This is the deficiency in the system, which must be rectified by the legislature.”24 India has largely ignored the protection of victims‟ rights, irrespective of whether the perpetrator is the state or a private individual. While it is impossible to describe all of the problems faced by victims in a single paper, the following are several notable examples that should help illustrate the nature of victims‟ rights in the country. Victims in India face significant, and sometimes insurmountable, hurdles during the investigation and prosecution of crimes. The filing of an initial complaint, in and of itself, is a challenging endeavor. From 2006 to 2008, People‟s Watch, a national human rights organization, undertook fact-finding missions on police torture across 47 districts in nine states in the country and came up with some startling revelations. 25 Out of 6,063 cases they monitored, almost twenty percent of the cases resulted in police acquiescence, where 24 25 Justice Krishna Iyer, Rattan Singh v. State of Punjab, AIR 1980 SC 84. Subhradipta Sarkar, The Quest For Victim‟s Justice in India, Human Rights Brief, Vol. 17 Issue 2, retrieved from <http://digitalcommons.wcl.american.edu/hrbrief/vol17/iss2/3/> on 9th March 2015 at 11:30 pm. 10 the police failed to act upon victim complaints against other private individuals. 26 In some states like West Bengal, the rate was found to be as high as 49 percent.27 The present criminal justice system is based on the assumption that the claims of a victim of crime are sufficiently satisfied by the conviction of the perpetrator. 28 The Committee on Reforms of Criminal Justice System, chaired by Justice Dr.V.S. Malimath, by the Ministry of Home Affairs, in its Report submitted to the Government of India in March 2003, perceived that “justice to victims” is one of the fundamental imperatives of criminal law in India.29 It suggests a holistic justice system for the victims by allowing, among other things, participation in criminal proceedings as also compensation for any loss or injury. 30 3.1 Statutory Provisions Statutory provisions under which recognize the rights of the victim and role played by him in criminal justice delivery system are compensation may be awarded to victims of crime are: Criminal Procedure Code, 1973 Probation of Offenders Act, 1958 3.1.1 Provisions under CrPC, 1973 The position and role of the victim in the criminal justice process has become clear and recognised only after the 2008 Amendment Act. Rights and role of the victim as enshrined under various provisions of the code are as follows: (i) He/she may lodge an information with the Police, regarding commission of a cognizable offence.31 26 People‟s Watch, Torture and Impunity in India Annex (2008), retrieved from <http://www.pwtn.org/tor tureandimpuntybook.htm> on 6th March 2015 at 4:11 pm. 27 Ibid. 28 K.D. Gaur, Justice to Victims of Crime: A Human Rights Approach, Criminal Justice: A Human Rights Perspective Of The Criminal Justice Process In India, 2004, p.351. 29 N.R. Madhava Menon, Victim‟s Rights and Criminal Justice Reforms, The Hindu, 27th March 2006, at 7, retrieved from <http://www.hindu.com/2006/03/27/stories/2006032703131000.htm> on 12th March 2015 at 5:04 pm. 30 st 1 Report of Committee on Reforms of Criminal Justice System, Ministry of Home Affairs, Government of India, 2003, p. 80-81. 31 Section 154, Code of Criminal Procedure, 1973. 11 (ii) He/she may file a complaint in the Court of Competent Judicial Magistrate, alleging that an offence (may be more), cognizable or Non-cognizable, has been committed and inviting the Magistrate to take action according to law. 32 (iii) He/she may figure as a witness in a complaint case during preliminary procedure. 33 (iv) He/she may be examined by the Police as a witness during investigation. 34 (v) There is scope for statements of the victims as witnesses being recorded by a Competent Magistrate.35 (vi) In a complaint case filed by the victim, he/she may directly and actively participate in the prosecution but he/she stands on a different footing in a case instituted on police report. (vii) In a trial before the Court of Sessions, the Public Prosecutor is the only authority to conduct the prosecution.36 The victim may engage an Advocate, but the latter will have no right of audience of his own. (viii) The victim may, as a person, who suffered harm in consequence of an offence committed against him/her, compound the offence, provided that it is compoundable, with or without the consent of the Court.37 (ix) When the victim filed a complaint and the proceeding arising out of it is a summons case pending in court, he/she may withdraw the complaint, at any time before the final order is passed. 38 (x) There is no provision for withdrawal of a complaint in a warrant or sessions case. The victim, if he/she is the complainant, may with the consent of the court, withdraw charge other than those on which the accused has been convicted by the court in that case. 39 (xi) The victim is entitled to participate in the meeting meant for working out a satisfactory disposition of the case, where the accused has voluntarily made an application for plea bargaining.40 32 Section 190(1) (a) r/w Section 2(d), Code of Criminal Procedure, 1973. Section 200, ibid. 34 Section 161, ibid. 35 Section 164, ibid. 36 Section 225, ibid. 37 Section 320, ibid. 38 Section 257, ibid. 39 Section 224, ibid. 40 Section 265 B r/w Section 265C, ibid. 33 12 (xii) The victim, if he/she happens to be the complainant, has to be associated with the process of plea-bargaining and given notice for hearing. 41 (xiii) The victim, if he/she is the complainant in a non-cognizable case may be awarded costs by the court if it convicts the accused. (xiv) The victim may be awarded compensation by the Court, either out of the fine imposed by the court upon conviction of the accused or when fine does not form part of the sentence, by an additional order while passing the judgment of conviction. It is for the accused found guilty, to pay such compensation to the victim. The court has the power to grant compensation independently of the sentence inflicted. 3.1.2 Criminal Law Amendment Act, 2008 The recent amendment to the CrPC notified in 2009, addressed the victim‟s right to compensation.42 The amendment inserted section 357A after Section 357 of the Act providing for a victim compensation scheme. A) Section 357A Victim compensation as now made applicable by CrPC does not require the apprehension and conviction of the offender to provide financial relief to the victims. (i) Scheme for compensation to be prepared by the State GovernmentsScheme for providing compensation shall be prepared by State Governments in coordination with Central Government. Such scheme shall provide for compensation for: Victim of Crime Dependents of victim who died as a result of crime, who have suffered loss or injury and who require compensation. 43 (ii) Quantum of compensationQuantum of compensation shall be decided by District Legal Service Authority or State Legal Service Authority, on recommendation for compensation by the court. 44 (iii) Court to make recommendation- 41 Section 265B, Code of Criminal Procedure, 1973. Supra note 5. 43 Section 357A(1), Code of Criminal Procedure, 1973. 44 Section 357A(2), ibid. 42 13 The Court shall make recommendation, if it is satisfied at the conclusion of trial that compensation awarded under Section 357, CrPC is inadequate for rehabilitation or where the cases end in acquittal or discharge and victim has to be rehabilitated. 45 (iv) Cases where offender is not traced or identifiedAn application may be presented by Victim or his dependents to District Legal Service Authority or State Legal Service Authority for compensation in cases where offender is not traced or identified and where no trial takes place.46 (v) District Legal Service Authority or State Legal Service Authority to award compensationDistrict Legal Service Authority or State Legal Service Authority shall award adequate compensation by completing the enquiry within two months on receipt of such recommendations or on the application. 47 (vi) Order for interim reliefEither on recommendation of Court or on application of victim or his dependents, District Legal Service Authority or State Legal Service Authority may make an order to alleviate the suffering of the victim, on the certificate of Police Officer not below the rank of officer in charge or Magistrate of area concerned, to be made available free of cost: first aid facility or medical facility or any other interim relief. 48 B) Section 357 Both Criminal Court and Civil Courts are empowered in different manner to award compensation under this Section. (i) Compensation under Section 357, CrPC is payable out of fine recovered from convict.49 (ii) Victim or dependents may recover compensation in Civil Court. 50 (iii) Criminal Court may order to pay compensation while imposing a sentence of which fine does not form a part.51 45 Section 357 A(3), Code of Criminal Procedure, 1973. Section 357 A(4), ibid. 47 Section 357 A(5), ibid. 48 Section 357 A(6), ibid. 49 Section 357(1), ibid. 50 Section 357 (1)(b), ibid. 46 14 (iv) Dependents or heirs of victim who are entitled under Fatal Accidents Act,1855 are entitled to claim compensation from persons convicted for death or abetment. 52 The Court may take action for recovery of fine by warrant for levy of amount by attachment and sale of any movable property belonging to offender or warrant to Collector of District authorizing him to realize the amount as arrears of land revenue from movable property or immovable property or both of defaulter. 53 C) Difference between compensation under Section 357A and Section 357,CrPC Under Section 357A, compensation is payable out of funds created by the State Government and under Section 357, it is payable out of fine recovered from convict. Under Section 357A, compensation is payable even if offender is not traced or identified but under Section 357, it is payable only upon conviction of offender. Under Section 357A, compensation is payable in addition to compensation awarded under Section 357 and under Section 357, there is no such provision. Section 357A is a mandatory provision for compensation whereas Section 357 is discretionary. Under Section 357A, order for compensation is made by District Legal Service Authority or State Legal Service Authority and under Section 357 by the Court. Section 357A empowers District Legal Service Authority or State Legal Service Authority to make Order for interim relief and under Section 357, there is no such provision. Under Section 357A, no criteria is specified for dependents of victim entitled to compensation under Section 357 only dependents or heirs of victim who are entitled under Fatal Accidents Act, 1955 can claim compensation. Furthermore, Section 372 of the CrPC has been amended, containing the following proviso: “Provided that 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 51 Section 357(3), Code of Criminal Procedure, 1973. Section 357(1)(c), ibid. 53 Section 421, ibid. 52 15 imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.” The section provides a victim a specific right of appeal in the following circumstances: Acquittal of the accused, Conviction for a lesser offence, and; Inadequate compensation. 54 Earlier, the section mentioned a general right to appeal and restricted the right to only those situations as provided for in the CrPC or any other applicable law. 3.1.3 Criminal Law Amendment Act of 2013 The Criminal Law Amendment Act of 2013 inserts two more sub-section under section 357. Clause B provides that the compensation payable by the State under 357A shall be in addition to the payment of fine to the victim u/s 326A or 376D of IPC. 55 Further clause C provides that all private or public hospitals shall provide free first aid or medical treatment to victims of any of the crimes covered u/s 326A , 376, 376A-E.56 Apart from the above-mentioned provisions, the victim can claim compensation by approaching a higher court under Section 482 of the CrPC, which empowers the court to exercise its inherent powers in the interest of justice. However, the Supreme Court has discouraged this practice, in view of the availability of compensation under Section 357. 3.1.4 Probation of Offenders Act, 1958 (P.O.A.) Power of court to require released offenders to pay compensation The Court directing the release of an offender under section 3 or section 4 may make at the same time a further order directing him to pay such compensation as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and such costs of the proceedings as the court thinks reasonable. 57 While the above reflects the role assigned to victims in the criminal justice machinery system, reality reveals that the situation is worse. A victim of a crime in the Indian legal 54 Section 372, Code of Criminal Procedure, 1973, as amended by the Amendment Act of 2008. Section 357B, ibid, as amended by the Amendment Act of 2013. 56 Section 357C, ibid, as amended by the Amendment Act of 2013. 57 Section 5(1), Probation of Offender‟s Act, 1958. 55 16 framework is the most discarded person. While the accused occupies the central place, the victim is reduced to merely being an informant and witness. He has little or no say in the investigation, prosecution and finally, sentencing of the accused. 3.2 Role played by the judiciary There exist a plethora of cases where the neglected position of victims of crime was highlighted. The rights of the victim and need of reparation is time and again pressed upon by the Supreme Court. Compensation has been awarded by the Supreme Court to the victims of the crime which exposed the sorry state of affairs that has been prevalent in the lower courts even some times High Courts. It is better to examine cases under two heads i.e., (i) Under Code of Criminal Procedure (ii) Under Indian Constitution 3.2.1 Under Code of Criminal Procedure The first case in the line, which attracted the mind of the court came way back in 1952 where the Hon‟ble connected general principle of sentencing i.e. while passing a sentence the court must bear in mind the proportionality between offence and penalty with granting of compensation and observed that while imposing the fine court must consider gravity of offence and the pecuniary condition of the offender. Then came the case of Prabhu Prasad Sah v. State of Bihar58 where the Hon‟ble Court not only upheld the conviction of 15 years old boy (actually at the time of commission of crime the accuse was of 15 Yrs) but also observed that although requirements of social justice demands the imposition of heavy fine but taking in to consideration the condition of the accused, awarded fine of Rs 3000 to be paid by him to the children of the deceased. In another case of Palaniappa Gounder v. Sate of Tamil Nadu59 Supreme Court following the same view as of earlier not only reduced the amount of fine imposed by the High Court from Rs 20,000 to Rs 3,000 but also observed that: 58 59 Prabhu Prasad Sah v State of Bihar, AIR 1977 SC 704. Palaniappa Gounder v Sate of Tamil Nadu, 1977 AIR 1323. 17 “It appears to us that the High Court first considered what compensation ought to be awarded to the heirs of the deceased and then imposed by way of fine an amount which was higher than the compensation because the compensation has to come out of the amount of fine. Apart from the fact that even the compensation was not fixed on any reliable data, the High Court, with respect, put the cart before the horse in leaving the propriety of fine to depend upon the amount of compensation. The first concern of the Court, after recording an order of conviction, ought to be to determine the proper sentence to pass. The sentence must be proportionate to the nature of the offence and the sentence, including the sentence of fine, must not be unduly excessive.” Next in the line is the land mark case of Sarwan Singh v. State of Punjab60 where Supreme Court not only retreated its previous stand point but also laid down, in exhaustive manner, that what all should be taken in to account while imposing fine or compensation. The Hon‟ble Court Observed that: “The object of the section therefore, is to provide compensation payable to the persons who are entitled to recover damage from the person sentenced even though fine does not form part of the sentence. Though Section 545 enabled the court only to pay compensation out of the fine that would be imposed under the law, by Section 357(3) when a Court imposes a sentence, of which find does not form a part, the Court may direct the accused to pay compensation. In awarding compensation it is necessary for the court to decide whether the case is a fit one in which compensation has to be awarded. If it is found that compensation should be paid, then the capacity of the accused to pay compensation has to be determined. In directing compensation, the object is to collect the fine and pay it to the person who has suffered the loss. The purpose will not be served if the accused is not able to pay the fine or compensation for, imposing a default sentence for non-payment of fine would not achieve the object. If the accused is in position to pay the compensation to the injured or his dependents to which they are entitled to, there could be no reason for the court not directing such 60 Sarwan Singh v State of Punjab, AIR 2000 SC 362. 18 compensation. When a person, who caused injury due to negligence or is made vicariously liable is bound to pay compensation it is only appropriate to direct payment by the accused who is guilty of causing an injury with the necessary mens rea to pay compensation for the person who has suffered injury.” “It is also the duty of the court to take into account the nature of the crime, the injury suffered, the justness of the claim for compensation, the capacity of the accused to pay and other relevant circumstances in fixing the amount of fine or compensation. After consideration of all the facts of the case, we feel that in addition to the sentence of 5 years‟ rigorous imprisonment, a fine of Rs. 3500 on each of the accused under Section 304(1), I.P.C. should be imposed.” The case of Harikishan and State of Haryana v. Sukhbir Singh and others 61 is the second most important case after Sarwan Singh where court repeated its firm understanding once again in following words: “The payment by way of compensation must, however, be reasonable. What is reasonable may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by installments, may also be given. The court may enforce the order by imposing sentence in default.” In the case of Balraj Singh v. State of U.P.62 stated the same point as discussed above but in most appropriate word by saying that the power to award compensation is not ancillary to the other sentence but in addition thereto. 61 62 Harikishan and State of Haryana v. Sukhbir Singh and others, AIR 1988 SC 2131. Balraj Singh v State of U.P., (1994) 4 SCC 29. 19 3.2.2 Under Indian Constitution The principle of payment of compensation to the victim of crime was evolved by Hon‟ble S.C. on the ground that it is duty of the welfare state to protect the fundamental rights of the citizens not only against the actions of its agencies but is also responsible for hardships on the victims on the grounds of humanitarianism and obligation of social welfare, duty to protect its subject, equitable Justice etc. It is to be noted that compensation by the State for the action of its official was evolved by the Hon‟ble Court against the doctrine of English law: “King can do no Wrong” and clearly stated in the case of Nilabati Behra v. State of Orissa63 that doctrine of sovereign immunity is only applicable in the case of tortuous act of government servant and not where there is violation of fundamental rights and hence in a way stated that in criminal matters (of course if there is violation of fundamental rights) this doctrine is not applicable. Rudal Shah v. State of Bihar64 is the most celebrated case where the Hon‟ble S.C. directed the state to pay compensation of Rs 35,000 to Rudal Sah who was kept in jail for 14 years even after his acquittal on the ground of insanity and held that it is violation of Article 21 done by the State of Bihar. The case of Bhim Singh v. State of J&K65 is another important case where Bhim Singh an MLA was arrested by the police only to prevent him to attended the Legislative Assembly. The Hon‟ble Court not only entertained the writ petition of his wife but also awarded the compensation of Rs 50,000 to be paid by the state. The case of Meja Singh v. SHO Police Station Zira66 is another unfortunate case where this time High Court of P&H took the cause of victim and awarded the compensation of Rs 25,000 for illegal detention of son of the petitioner. Custodial Death is another burning issue where the courts have awarded compensation to the victims of crime and the most important case under this heading is of Mrs. Cardinho v. Union of India67 where although the accused was arrested on the charge of misappropriation of some plastic ware and hospital utensils worth Rs1500 but tortured 63 Nilabati Behra v State of Orissa, AIR 1993 SC 1960. Rudal Shah v State of Bihar, AIR 1983 SC 1086. 65 Bhim Singh v State of J&K, AIR 1986 SC 498. 66 Meja Singh v SHO Police Station Zira, 1991 ACJ 439. 67 Mrs. Cardinho v Union of India, 1989 MhLJ 1101. 64 20 like hard core criminal and hence he succumbed to the torture. Here when the matter was brought before the Hon‟ble High Court of Bombay which gave the compensation of Rs 2,00,000 to be paid by the state. On the issue of brutal use of force and misuse of authority by the police outside the police station case of SAHELI v. Commissioner of Police, Delhi68 is land mark where the son of Kamlesh Kumari died due to ill treatment by a S.I. of Delhi Police, the Hon‟ble S.C. directed the Delhi Adm. to pay the compensation of Rs 75,000. The next important case is of Gudalure Cherian v. UOI 69 where Hon‟ble S.C. following an innovative approach first directed the whole matter to be investigated by the CBI afresh and completion of investigation directed the Govt. of U.P. to first suspend the police officials and medical officers who tried to save the accused but also directed the state to pay compensation of Rs 2,50,000 to the victim of rape and Rs 1,00,000 to victim of other crime. In Bodhi Satta Gautam v. Subhra Chakraborty70 where the Hon‟ble S.C. invented the concept of interim compensation and enforced the part third right against an individual by saying that: “This decision recognizes the right of the victim for compensation by providing that it shall be awarded by the Court on conviction of the offender subject to the finalization of Scheme by the Central Government. If the Court trying an offence of rape has jurisdiction to award the compensation at the final stage, there is no reason to deny to the Court the right to award interim compensation, which should also be provided in the Scheme. On the basis of principles set out in the aforesaid decision in Delhi Domestic Working Women‟s Forum, the jurisdiction to pay interim compensation shall be treated to be part of the overall jurisdiction of the Courts trying the offences of rape which, as pointed out above is an offence against basic human rights as also the Fundamental Right of Personal Liberty and Life.” 68 SAHELI v Commissioner of Police, Delhi, AIR 1990 SC 513. Gudalure Cherian v UOI, (1992)1 SCC 397. 70 Bodhi Satta Gautam v Subhra Chakraborty, AIR 1996 SC 922. 69 21 Hon‟ble S.C. in the case of Delhi Domestic Working Forum v. UOI71 has shown its concern in following words: “It is necessary, having regard to the Directive Principles contained under Article 38(1) of the Constitution of India to set up Criminal Injuries Compensation Board...Compensation for victims shall be awarded by the court on conviction of the offender and by the Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board will take into account pain, suffering and shock as well as loss of earnings due to pregnancy and the expenses of child birth if this occurred as a result …” Moreover, in State of Maharashtra v. Christian Community Welfare Council of India,72 the Supreme Court was called upon to decide whether the compensation paid by the State to the victim can be recovered from the guilty officer. Justice Hegde, speaking for the Court held that it will depend upon the fact whether the alleged misdeed by the officer was committed in the course of his official duties and whether it was beyond his lawful authority. If it was found that the appellant officers did cause the death of the deceased and exceeded their authority, then they cannot escape the liability to compensate the heirs of the deceased. In yet another landmark case on victim‟s compensatory relief, namely, D.K. Basu v. State of West Bengal,73 the Supreme Court, inter alia made the following observation: “The monetary and pecuniary compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for the redressal of the established infringement of the fundamental right to life of a citizen by the public servants. The State is vicariously liable to which the defence of sovereign immunity is not available and the citizen must receive the amount of compensation from the state; which shall have right to be indemnified from the wrongdoer.” 71 Delhi Domestic Working Forum v UOI, (1994) 4 SCALE 608. State of Maharashtra v. Christian Community Welfare Council of India, AIR 2004 SC 7. 73 D.K. Basu v. State of West Bengal, AIR 1997 SC 610. 72 22 In State of Andhra Pradesh v. Chalia Ramakrishna Reddy,74 relying on its earlier decision in D.K. Basu, awarded Rs. 1,44,000/- as compensation against the state government for death of a person caused while he was in judicial custody. Rejecting the defence plea that the prisoner was put in jail in exercise of State‟s sovereign function, the Court ruled that the concept of sovereign power is not an exception to right to freedom of life and constitutional guarantee of right to life overrides the theory of state immunity. However diverging from this trend, in the A.K. Singh case75, the Supreme Court set aside the High Court‟s order directing the convicts to furnish compensation to the victims, holding that Rs. 10 lacs was in excess of the required compensation for the crime. This decision was made despite the fact that state functionaries perpetrated this crime against innocent members of a peaceful demonstration. 76 On the other hand in the recent case of Chairman, Railway Board v. Chandrima Das77, the Supreme Court ordered the payment of Rs. 10 lacs as compensation to a Bangladeshi national who was repeatedly raped by Railway employees. The Court upheld the Calcutta High Court‟s decision that even as a foreign national she was entitled to the fundamental right to life in India, and thus there was a constitutional liability to pay compensation to her. However in this regard it is to be noted that the attempt of Hon‟ble S.C. and some of the High Courts as discussed above clearly shows that they are championing the cause of victim even in the given set up but still looking to the problem as a whole, inherent weakness on the legislative framework as well as laxity on the part of court has made the proper functioning of whole concept a distant dream in strict sense. 74 State of Andhra Pradesh v. Chalia Ramakrishna Reddy, AIR 2000 SC 2083. A.K. Singh v. Uttarakhand Jan Morcha, (1999) 4 S.C.C. 476. 76 Supra note 28, p.358. 77 Chairman, Railway Board v. Chandrima Das, (2000) 1 S.C.C. 465. 75 23 CHAPTER 4 SHORT COMINGS IN THE INDIAN CRIMINAL JUSTICE SYSTEM: VICTIM PERSPECTIVE The position of a victim of crime in the crime justice delivery system in India has improved a lot in the previous decade. Certain specific provisions have been brought about in the Code of Criminal Procedure by way of amendments of criminal law in the year 2008 and 2013. Now the victim‟s rights are better protected than ever before and the significance of his role has been recognised in the criminal justice system. Further, a great emphasis has also been laid on the need for rehabilitation and restoration of lifestyle of the victim by awarding compensation for the loss suffered by the victim. In spite of enactment of various legal provisions protecting the interest of victim, ground realities have remained more or less the same. Even today, a victim of crime faces neglect at various stages of justice delivery system. Though the Supreme Court and various High Courts have played a pro-active role in the protection of the rights of the victim of crime, the dismal position of the victim at the lower levels of trial still remains a cause of worry. 4.1 Pitfalls in Criminal Justice System: Victim perspective At every stage of the criminal justice system beginning with the reporting of the offence till the sentencing of the accused, a victim is faced with many difficulties hampering his right to get speedy justice. The Indian law is mainly focused about payment of compensation to victims of crime as well as rehabilitation and giving some financial assistance to him. The status of crime victims about access to justice and fair treatment may be properly appreciated in relation to the four different stages of criminal justice system, which are: 4.1.1 Right to mobilize the Criminal Justice System So far as right to mobilize the criminal justice system is concerned, the crime victim has no special or distinguishable status or privilege and normal rule of law is that any person78 can set the criminal law in motion. However, in respect of offences relating to 78 Section 154, Code of Criminal Procedure, 1973. 24 marriage, dowry torture and defamation, the victim as aggrieved party has been given exclusive right to file complaint. Some privilege has been given to victims of rape and cognate offences. If such victim is physically or mentally handicap than her statement shall be recorded by lady police officer or lady officer at a place convenient to such victim. It has been further provided that statement of lady as informant or witness during investigation shall be recorded by lady police officer or lady officer. 79 But all such provisions mainly relate to gender justice and protection of the dignity and privacy of ladies. The hardship of general public including crime victim in lodging FIR, vis a vis, harassing attitude of police officers in institution of a case, even after an order under 156(3) Cr.P.C. by a Magistrate came up for consideration before Hon‟ble Supreme Court in Lalita Kumari v. State of U.P.80 In this case the question came up before the Constitutional Bench of Supreme Court that whether a police officer is bound to register the FIR when a cognizable offence is made out or he has the discretion to conduct some kind of preliminary inquiry before registration of FIR. The court held that registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such a situation. While a crime victim is engaged in his treatment or is under shock and terror, some other person may get first opportunity to lodge FIR about an occurrence. In such a situation, the limited status of victim is further curtailed. If the police submits final report after investigation, notice is mostly issued to the informant of the case, and the crime victim, if not informant, remains unaware about the result of the investigation. In criminal revisions, appeals, and writ petitions filed by accused, the informant is mostly impleaded as opposite party. If the law is amended that after receiving any information of occurrence from any person other than crime victim, the officer-in-charge of the police station, shall enter such information in the station diary and proceed to search & take statement of victim of crime also, which may be made the basis of FIR, it will naturally 79 80 Proviso to section 154, Code of Criminal Procedure, 1973. Lalita Kumari v. State of U.P., (2014) 2 SCC 1. 25 strengthen the status of crime victim in criminal justice system and his right of access to justice and fair treatment may be ensured to some extent 81. 4.1.2. Right & Status of Victim during Investigation A crime victim has no right or status during investigation of a case. Even the criminal courts have also no right to interfere in investigation. The victim cannot withdraw a case at investigation stage in spite of the fact that the complaint, which was sent to police station under section 156(3) Cr.P.C. was filed by him. The statement of victim or other witness cannot be recorded under section 164 Cr.P.C. until it is sponsored by investigation officer. Same is the position about holding Test Identification Parade of person or property, forensic examination of any seized article or viscera etc. The investigation agencies have been given such a wide and unbridled powers in investigation. But the experience show that criminal cases mostly fail due to delay and latches in investigation. 82 Recently accused parsons were acquitted in Bathani massacre case83 due to faulty investigation and list of such cases is quite long. Hon‟ble Courts in various rulings has observed about such lapses in investigation which was proved to be fatal in criminal trial. If the prosecution fails due to faulty investigation, the crime victim never gets justice. If the police has been given such a wide and unfettered discretion in investigation, why not there be a clear provision fixing liability on state to compensate the crime victim if the prosecution fails due to latches in investigation. Moreover, liberty should be given to state to reimburse itself by realizing the amount of compensation from the erring Investigating Officer. At this stage, the interpretation of Hon‟ble Supreme Court in judgment delivered in Sakiri Vasu v. State of U.P.84 may be quoted wherein the Apex Court observed that section 156(3) Cr.P.C. which gives power to a magistrate to order for registration of a case and investigation, on a complaint filed by a crime victim, also gives crime victim, by necessary implication power to monitor such investigation. 81 Retrieved from < http://dc-siwan.bih.nic.in/Report/crime%20victims.pdf> on 28th March 2015 at 8:13 pm. 82 Supra note 81. 83 Kavita Krishnan, Economic and Political Weekly, November 16, 2013 Vol XLVIII no.s 45 & 46, retrieved from <http://www.epw.in/system/files/pdf/2013_48/45-46/Battle_for_Justice_and_ Democracy .pdf > on 26th March 2015 at 6:20 pm. 84 Sakiri Vasu v. State of U.P., 2008 AIR SCW 309. 26 Whether the powers of monitoring investigation are available only in respect of cases instituted under orders under section 156(3) Cr.P.C. or it may be exercised in respect of other investigations also is a moot question for clear interpretation and legal provision. It is high time that Law Commission should carefully examine and recommend incorporation of a clear provision in this respect in Cr.P.C. The victim may oppose the release of an accused on bail or release of any property seized during investigation, or oppose the prayer of accused in criminal revision, appeal and writs filed, but he has no status to be necessarily informed by court, when such an applications are filed by accused. If the crime victim is not the informant in FIR, he does not get information in above mentioned matters and thus after institution of FIR, the victim has no alternative but to visit court every day to verify as to whether any bail application, release application or criminal revision against any order has been filed by accused. A simple amendment in Cr.P.C. giving right to crime victims to file caveat in such matters may give right of fair treatment to crime victims in criminal justice system. 85 4.1.3. Rights & Status of Victim during Trial The status of crime victim in criminal trial is quite limited. He may compromise a compoundable case or withdraw petty cases instituted by him. He may apply for release of property seized in the case and he may appoint a lawyer to assist the prosecution. He is an important witness for successful prosecution. He has right to file criminal revision against an order passed in criminal trial and right to file appeal, in case of acquittal of an accused or inadequate sentence or compensation. 86 However, a victim of crime has not been assigned any place in the court room to watch the trial even after his evidence is recorded in such trial. Even in complaint cases disclosing commission of a Sessions triable offence, the crime victim has no status in prosecution of the case before the session court and he may only engage a lawyer to assist the prosecutor. He has no right to be informed at the time of hearing on the point of charge or imposition of sentence, after conviction of the accused nor is he needed to be informed at the time of quantifying the compensation to be paid, if any. If right of filing caveat to give opportunity of hearing at 85 86 Supra note 81. Section 372, Code of Criminal Procedure, 1973, as amended by Amendment Act of 2008. 27 such stages, bail etc. be given to the crime victims, it may be acknowledgement of his right of fair treatment in criminal justice system. 87 In spite right of privacy, recording of her evidence in camera and non publication of her name in any manner either by media or in judgment, a victim of rape is mostly threatened by the accused persons to be defamed in her „Sasural‟ and resultantly, in most of the cases of rape, the crime victims show reluctance in attending court for giving evidence against accused and if they are compelled, they mostly turn hostile. It is a matter of consideration by legislature to see as to whether the provision of S. 376 of the IPC should be brought within the purview of plea bargaining88, because under such circumstances the victim may be at least properly compensated and rehabilitated without there be any threat to be defamed. The choice will always remain with the victim. 4.1.4. Rights & Status of Victim after Judgment Where the accused is convicted after trial, the victim need not be necessarily heard on the point of sentence. If he is present, the court may hear him also. There are two important rights of victim, after pronouncement of judgment. He may file a criminal appeal against the judgment of acquittal and also against inadequate sentence or compensation and he has right to get compensation. The payment of compensation in India under section 357 Cr.P.C. or under the provisions of Probation of offenders Act is subject to conviction of accused and as per interpretation, the amount of such compensation should be dependent on the capacity of accused to pay. An amount paid to a victim in reference to capacity of accused and without considering the actual harm suffered by crime victim may be a financial assistance and not compensation. The amount of compensation should be in proportion to the harm and sufferings of victim and must be paid by state immediately. Liberty may be given to state to reimburse itself from the estate of offender.89 Necessity in this respect, though quite late, was realized by Parliament and by the Code of Criminal Procedure (Amendment) Act 2008, a very important and long awaited provision was inserted in Cr.P.C. as section 357A. The section provides about awarding compensation irrespective of acquittal or discharge of 87 Supra note 81. Section 265A, Code of Criminal Procedure, 1973. 89 Supra note 81. 88 28 accused and also in such cases where the offender is not traced or identified but the victim is identified.90 90 Section 357A(3), Code of Criminal Procedure, 1973. 29 CHAPTER 5 SUGGESTIONS & CONCLUSION In India, though there have been varied changes in the policies of criminal jurisprudence realization the importance of the victim and role played by him in the criminal justice system. The introductory part of the project deals with the need and the purpose to discuss and analyze this area of our criminal system. In the next part of the project the meaning, concept and historical evolution of the victims of crime is studied. It also deals with the need of victim oriented approach and rights of the victim. The third chapter highlights the legislative provisions available recognizing the role of the victim in criminal justice process and also the contribution made by the Indian judiciary in this regard. The detailed appraisal of the criminal justice system procedures with regard to victim perspective are dealt with in detail from the fourth chapter of the project. Hence, it can be concluded the policy of our criminal justice system is becoming victimoriented and we have to a certain extent incorporated the idea of compensatory criminal jurisprudence. The problem arises in implementation of this policy. The attitude of judicial discretion needs to change. The provisions being discretionary, it neither imposes a legal obligation on the judge to order compensation in all suitable cases to the victim of crime, nor does it require reasons to be recorded for not doing so. Similarly, these provisions do not vest in the victims a legal right to be compensated either by the accused or the state for loss or injury caused by the commission of the offence. The victim remains at the mercy of the discretion of the judge for the award of compensation because of the word „may‟ in Sections 357(1) and (3) of CrPC. Mere punishment to the accused though it may exhaust the primary function of criminal law, is not fulfillment of the Rule of Law. Hence, the court should be liberal in utilizing the discretion vested in them in granting compensation to the injured in a criminal case. It is imperative to convert the discretionary power of the court into a legal mandate requiring it to in all suitable cases, pass compensation orders and when it decides not to do so, make it obligatory to record reasons for not doing so. 30 From the aforesaid cases we may conclude that the Apex Court in India has set a trend of compensatory criminal justice jurisprudence, which in effect is developing the ground towards restorative justice in our criminal justice system. What remains to be done is that the discretionary power of the Courts should be done away with and victim compensation should be available to the victim as a legal right. Further, State should put in more efforts for the implementation of various victim rehabilitation and compensation schemes. Another measure to be adopted requires an adoption of victim and witness protection programs for the protection of the victims of crime and also of various witnesses available. Lastly, but most importantly it is necessary for the government to realize the need of protection of victim‟s rights and greater participation in the criminal proceedings required at every stage. The right to speedy and fair trial must be ensured to the victim as well. 31 BIBLIOGRAPHY BOOKS 1. Das Bharat B, A Study of Definition and Scope of Victimology, Modern Thoughts on Victimology & Crimes: A Comparative Study, University Book House Pvt. Ltd., Jaipur, 1997. 2. Kelkar R.V., Criminal Procedure, Eastern Book Co., Lucknow, 2011. 3. Pranjape N.V., Criminology & Penology with Victimology, Central Law Publications, Allahabad, 2012. ARTICLES 1. Brooks, The Case for Creating Compensation Programmes to Aid Victims of Violent Crimes, (1976) Tulsa L.J. 477, 1976. 2. Chappell, Compensating Australian Victims of Violent Crimes, (1967-1968) A.L.J. 3, 1968. 3. Gaur K.D., Justice to Victims of Crime: A Human Rights Approach, CRIMINAL JUSTICE: A HUMAN RIGHTS PERSPECTIVE OF THE CRIMINAL JUSTICE PROCESS IN INDIA, 2004. 4. Kakkad Jhalak and Shruti Ojha, An Analysis of the Vanishing Point of the Indian Victim Compensation Law, Journal of Indian Law & Society, Vol.2, 2011-12. 5. Kumar Sindhu Vijaya, Rape Crime, Law And Victim‟s Right: An Analysis from Indian Penal System, 2010 Acta U. Danubius Jur. 74, 2010. 6. Menon N.R. Madhava, Victim‟s Rights and Criminal Justice Reforms, THE HINDU, Mar. 27, 2006. 7. Reddi P.V., Role Of The Victim In Criminal Justice Process, 18 Student B. Rev 1, 2006 8. Sheng-Bin TIAN, Protecting the Procedural Rights of the Victim, 5 US-China Law Review 32, 2008. 9. Waller Irvin, Crime Victims: Doing Justice to their Support and Protection, European Institute for Crime Prevention and Control, affiliated with the United Nations (HEUNI), Helsinki, 2003. 10. Wolfgang, Social Responsibility for Violent Behaviour, South. Cal. L.R. 5., 1970. viii WEBSITES 1. http://dc-siwan.bih.nic.in/Report/crime%20victims.pdf 2. http://digitalcommons.wcl.american.edu 3. http://ec.europa.eu/justice/criminal/victims/index_en.htm 4. http://hipa.nic.in/banerjea.pdf 5. http://jils.ac.in/wp-content/uploads/2011/12/Jhalak-Kakkar-and-Shruti-Ojha.pdf 6. http://lawreports.wordpress.com/2009/06/23/victim-compensation-in-india/ 7. http://timesofindia.indiatimes.com/city/thiruvananthapuram/Compensation-forvictims-of-crime/articleshow/30708723.cms 8. http://victimsupporteurope.eu/im-a-victim-of-a-crime/victims-rights/ 9. http://www. manupatra.com 10. http://www.academia.edu/1787492/CONCEPT_OF_VICTIMOLOGY_IN_INDIA 11. http://www.heinonline.org 12. http://www.ielrc.org/content/a0402.pdf 13. http://www.legalserviceindia.com/articles/cjc.htm 14. http://www.legalserviceindia.com/articles/pun.htm 15. http://www.preservearticles.com/2012050131685/short-essay-on-the-compensationto-victims-in-india.html 16. http://www.thehindu.com 17. http://www.unafei.or.jp/english/pdf/RS_No81/No81_11VE_Chockalingam.pdf 18. http://www.victimsofcrime.org/help-for-crime-victims/get-help-bulletins-for-crimevictims/victims‟-rights 19. http://www.wcl.american.edu/hrbrief/17/2sarkar.pdf 20. https://www.victimlaw.org/victimlaw/pages/victimsRight.jsp ix