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VICTIM ORIENTED CRIMINAL JUSTICE SYSTEM

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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.
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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
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