80

CHAPTER - IV

VICTIMS IN CRIMINAL JUSTICE SYSTEM

"So slow is justice in its way

Beset by more than customary clogs

Going to law in these expensive days

Is much the same as going to dogs"

- Willock1

4.0 INTRODUCTION

"The history of crime and punishment in the whole civilized world reveals a

steadily increasing concern with the treatment of the criminal, and a virtual black out

of attention to the situations of the victim. For more than thousand years, prior to the

mid-twentieth century, the victim of crime in our society and in the administration of

justice has been, ignored."2 Reflections of this nature, heard perhaps more often

today than ever before, point to a direction, which is new to the criminal justice

systems of developing countries.

The victim of crime has been the 'forgotten man' of the criminal justice

system. This lack of knowledge about victims is astonishing; given that the criminal

justice system as we know it today would collapse if their cooperation was not

forthcoming.

"Tears shed for the accused are traditional and 'trendy' but has the law none

for the victim of crime, the unknown martyr?"3 The question and revealing remarks

by Hon'ble Justice Krishna Iyer on plight of victims in criminal justice system

1 Refer 'The Victim in Criminal Justice System' by Mahmood Bin Muhammadin 'Perspective of

Criminology'. 2 Michael Fooner, an eminent criminologist in his article, "Victim Induced Criminality" published in

"Science" Vol. 153 (1966). 3 Justice Krishna lyer, Hon'ble Judge, Supreme Court of India in his writing "The Criminal Process

and Legal Aid", Published in Indian Journal of Criminality. P.10

81

clearly depicts the lacuna and ignorance of the criminal justice system towards the

victims.

Broadly speaking, the agencies concerned with the administration of criminal

justice are the legislature, the police, the courts and the correctional services. The

legislature provides the broad frame work of legislation within which all the other

agencies operate. The police are concerned with the enforcement of law, the courts

with the administration of justice through various procedures and correctional

services with the treatment of criminal through several institutional and non-

institutional programmes. The attention of all these agencies is focused on the

criminal who holds the centre of the stage all the time. Law aims at formalizing the

ambitions of a society while conforming to its norms. If it does not do so, it will be a

dead letter.

The most important object of criminal law is undoubtedly in the protection of

primary personal right to life, personal liberty and property. In their wider

connotations, the protection is ought to be against unlawful invasion by other- the

lawlessness, the disorderly, the violent, the fraudulent and the predatory. But, it is

the other way round, the guilty man, lodged, fed, clothed, warmed, lighted,

entertained, at the expense of the state in a model cell, issued from it with sum of

money lawfully earned, has paid his debt to society. He can set his victim at

defiance, but the victim has his consolation. He can think that by taxes he pays to the

Treasury, he has contributed towards the parental care, which has guarded the

criminal during his stay in the prison.4

"The first requirement of a sound body of law is that it should correspond

with the actual demands of the community, whether right of wrong."5 The modern

criminal law, which is supposed to represent the social ambitions and norms, is

designed to punish as well as to reform the criminal but it overlooks an important by

product of crime, the victim. When a crime is reported to the police, they first look

for the criminal. They maintain statistics on the arrest, convictions, imprisonment

and release of criminal or suspected criminals. They require the services of the

4 Adolphe Prins: Belgian Criminologist wrote about the inequitable treatment accorded to the

offender and victim. 5 O.W. Holmes: The Common Law.

82

victim only as a witness for the identification and successful prosecution of the

criminal. The courts, of course, interpret the law and administer justice, in the name

of the state, by adjudicating on the basis of the evidence placed before them,

whether the offender is guilty or not, and, on conviction, awarding sentence,

proportionate to the nature of crime. During the trial, the criminal is treated as a.

privileged person and is provided all possible legal aid including a defence counsel,

if necessary, at the cost of the state. As for the correctional services, the emphasis

has shifted from deterrence to reformation, and the stress is on humanization of

prisons and a more humane treatment of offenders. The suffering of victims often

immeasurable, are entirely overlooked in misplaced sympathy for the criminals. One

can, therefore, understand the sarcasm in the words spoken by the Belgium delegate

at the Paris Prison Congress in 1896.

Nothing is more central to our well being than our right to life, bodily

security, freedom of movement, security of habitation and enjoyment of property-

rights whose protection we have committed to the charge of criminal law. Yet the

criminal law system remains far short of expectation in this area even long after

anniversary of the Indian Penal Code.

The reliance of the criminal justice system on the victim has proved to be a

powerful bargaining tool for those seeking to further recognition of victim's need

and to a lesser extent, rights. The political .impetus is important in so far as much of

the criminological research into victims has been funded, promoted and in many

cases even instigated by central or local government. That victims became a focus

for political concern may be related to the profound and growing sense of

disillusionment across political parties with the ability of the criminal justice system

to 'do anything' about crime.

The political impetus to championing the rights of victims has played a

major part in raising the profile of the victim from forgotten actor to key player in

the criminal justice process.

The role of the victim in the criminal justice system is yet to receive major

attention by the policy makers and criminologists. However without the cooperation

of the victim in reporting crime, in furnishing evidence, in identifying the offender

83

and in acting as a witness in court, most crime would remain unknown and

unpunished.

The various researches on victim's experiences of the criminal process have

suggested that, at best prosecution, conviction and sentence may have a powerful

therapeutic effect in relieving victim's feelings of complicity and guilt.

The victim who plays the key role in the crime scenario is forgotten and

neglected. Until the establishment of a true police force in the middle of last century,

often the victim was the most important element in the bringing to justice of any

criminals. But the police slowly took over the prosecuting function of the victim.

Today, private prosecutions are possible but rare and only arise where the state

refuses to prosecute. It is usually the state, originally through the police, which carry

out most of these functions. The victim's role has been reduced largely to one of

reporting offences and giving evidence if so requested. Although these are essential

to the system, they do not furnish the victim with any decision making power. Some

would argue that this reduces the feeling that the vicitmisation has been atoned; the

prosecution seems to have little to do with them or what occurred and far more to do

with state or even police policy. Until the 1960s, this feeling was enhanced by the

lack of compensation or restitution for the victim. Although there was some, fairly

minimal, legislative provision for compensation it was rarely used, and the victim

had no right to compensation and no expectation that it would be paid.

The lack of knowledge about victims is astonishing, given that the criminal

justice system as we know it today would collapse if their co-operation was not

forthcoming. Apart from feeling, ignored by the criminal justice system, victims

often feel they are being used by the courts. They are expected to report to the police

but are not always made to feel comfortable in doing this; for most victims the

police station remains a fairly uninviting environment. This reduces the

effectiveness of crime control, as it increases the offender's chances of getting away

undetected if victims are asked to identify offenders they are rarely screened and

may, through fear of facing the offenders, fail to identify him or her. When called to

give evidence, they are rarely permitted to relate their experiences in their own

words but are forced to answer questions, which may actually misrepresent their

84

account of what occurred. Further more if they refuse to cooperate they may be

prosecuted because they would thereby be obstructing the course of justice. The

proceedings are indeed mostly adapted to the needs of the state, which has also been

victimized, in that, its peace and its rules have been broken. The state has an interest

in social control of offenders and therefore has a right to require any one to give

evidence.

In planning and developing administration of criminal justice, proper

attention is not given to the victims of crime in achieving goals of criminal justice.

The Buckley definition of a system is a helpful starting point in out effort to

understand victim as an integral part of the criminal justice system. Buckley in his

sociology and Modern System Theory defined "a system in the following words:

...system ... may be described generally as a complex of elements or components

directly or indirectly related in a casual network, such that each component is related

to at least some other in a more or less stable way within any particular period of

time. The particular kinds of more or less stable inter-relationships of component

that become established anytime constitute the particular structure of the system at

that time, thus achieving a kind of "whole" with some degree of continuity and

boundary."6

Jeremy Bentham contends that a utilitarian system of justice would provide

for the victim, either from the offender's estate or if impractical, from the state.

Unfortunately, the penal lobby's influence was restricted to a series of rather weak

resolutions.

A very few studies have been undertaken to look at victim experiences in the

criminal system. However results have been found to be disturbing and erratic.

Often forgotten in the criminal justice system and concerned for their manipulation

by others victim and witnesses frequently expressed negative attitude to the existing

criminal justice system. The victim seems to be dissatisfied with the operation of

various parts of criminal justice system, but their reasons vary, not surprisingly,

according to the agency being considered.

6 W. Buckley : Sociology and Modern System Theory, Prentice Hall, Englewood Cliffs, (1967)

85

4.1 ANCIENT CRIMINAL JUSTICE SYSTEM

"Mankind censure injustice fearing that they may be

the victims of it, and not because they shrink from

committing it"

- Plato

The concept of natural justice prevailed in primitive times. In ancient

civilisation, the victim of an offence was the central figure in any criminal settings

or happenings. The injured or the victim had a vital say in matters connected with

restitution a retribution.

Literally speaking, primitive societies did not have any regulated system of

criminal justice. In the ancient societies, redressal for personnel wrong was in the

hands of the individual, as he was alone in his struggle for existence. He single-

handedly faced the attack and harms caused to him by external forces. He had to

take the law into his hands and punish the aggressor in accordance with the

prevailing practices accepted by his society. He carried out the punishment in form

of revenge aimed at deterrence and compensation. It was the private revenge and

compensation was exclusively personal.7

The basis of primitive law was the reparation by the offender of offender's

family to the victim for his loss or injury. At the time there was no political

institution to enforce law and punish criminal, so the right to punish was vested with

the victim or victim's kin. The victim or victim's family was allowed to punish a

criminal or directly receive goods or money as compensation for a crime.

In primitive cultures, prisons did not exist, therefore the choice for punishing

a serious offender were the death penalty, a fine or exile. The victim and his kin

executed the offender; if another method of punishment was taken, a neutral person

would decide on the correct fine based upon the class of the offender and the victim

as well as the seriousness of the crime. In the Ifugao culture, an upper class person

7 Sir Henry S Maine: Ancient Law, Oxford Library Press (1946): The Penal law of ancient

communities is not the law of crimes; it is the law of wrongs or in English technical term, Torts.

86

who stole was fined more heavily than the middle or lower middle class thief since

the higher status offender was supposed to set an example for the community.

Examples of how crimes and punishment were handled by these primitive

people show that believe in justice for the victim was deeply ingrained in their un

written legal codes. Strong family ties characterize their culture, and if some one

deliberately murdered, it is the collective responsibility of the victim's family to take

revenge on the murdered and even, the murderer's kin.

In ancient societies, property crime victims had the right to monetary

compensation by the offender or if none was caught, by the state. Victims of violent

crimes such as murder were revenged by the victim's family - a life for a life. Both

of these customs must have been satisfying to the victims and the victim's family. If

they were not, the victim had the right to negotiate with the offender or offender's

family for another alternative. For example, it is recorded in Homer's Iliad that blood

revenge could be replaced with "blood money"- a fine in lieu of killing the offender.

Permanent exile was usually also necessary.

The code of Hammurabi instituted by the king of Babylonia is one of the

oldest legal codes and also one of the most generous in compensating the victim. It

was the victim who was considered first, not the offender. In Babylon, a theft victim

was not repaid with goods like value; rather, each crime carried different restitution.

The theft of goods while they were being transported was punishable by a five fold

restitution; the embezzlement of a merchant's money by one of his employees

required threefold payment; and stealing from the priesthood or state, a more serious

offence, could apprehended, the Babylonian state replaced all of the victim's stolen

property, but only after the victim had itemized his property in the presence of God"

Criminals were harshly treated in Babylonia. The theory of an eye for an eye

had certain qualifications. If a criminal blinded a slave in one eye, for example, he

had to pay the slave a compensation of half a mina of silver. A commoner who

suffered a similar injury received an entire mina. If this same crime was committed

against an aristocrat, the criminal himself was blinded in one eye.

Babylonian laws had considerable influence on the Canaanites in Palestine,

and there are similarities between the Code of Hammurabi and restitution of the Old

87

Testament. Restitution and vengeance are themes that recur throughout the Bible -

"eye for eye, tooth for tooth, hand for hand, burning for burning, wound for wound

and stripe for stripe." If a thief could not compensate the victim, he would be his

property and could be sold as slave to compensate his losses. There is no discussion

in the Bible of rehabilitation. Instead, theft was discouraged by imposing a severe

burden of restitution on the offender, by making him return four or five times the

value of stolen property.

Ancient Rome and Greece gradually eliminated the right of the victim to

conduct a personal vendetta against the criminal and replaced it with a system under

which the state fined and punished the criminal. In 621 B.C., Draco codified the

existing oral Greek laws and shifted the responsibility for meting out punishment

from the victim to the state. Under Solon's code any citizen, not just victims or their

closet kin, could bring an indictment against a criminal for any offense but a capital

one; right of prosecution and punishment being still vested in the relatives. This was

another significant step in transferring control over retribution and restitution away

from the victim.

The Romans also endorsed the government administration of punishment

and compensation. As in Greece, a public prosecutor did not exist; instead, any

citizen had the right to bring criminal charges against another. Some of the penalties

provided by Roman law now seem particularly harsh alike existed in Greece.8

The Code of the Twelve Table, the codification of Roman oral law written

by a ten-man commission in 451 B.C., perpetuated the Roman tradition of

restitution. The Germanic tribes that overran Rome modified the rights that victims

had enjoyed under Roman law. By the ninth century A.D. and at the time of Alfred

and his so-called 'Dooms of Alfred' the blood feud was invoked only if the victim's

request for monetary compensation was denied. But the payment was still made to

the victim or his family. In Hammurabi Code also, each crime had a price dependent

8 An example: If a debtor failed to fulfill an obligation, his creditor could haul him into a public

square and proclaim the particulars of the bad debt. He could then bring the debtor before a

magistrate who confined him for sixty days while the creditor continued to announce the debtor's bad

faith. If the debtor, or his family and friends, had not discharged the obligation after sixty days, the

creditor had the right either to kill him or to sell him as a slave and keep the proceeds. Usually the

debtor was allowed to work off his obligation.

88

upon the type of crime committed as well as the victim's status, age, sex, in the case

of a woman whether she was of or past childbearing age, and so forth. Any one who

refused to pay the set fine was ostracized as an outlaw and any member of that

community could legitimately kill the criminal.

In primitive societies, criminal - victim relationship was the reflection of

existence for survival and power struggle and it was based on idea of responsibility

but on the theory of survival. So the idea of prevention of future crime guided the

victim to ruthless retaliation and aggressively acquired compensation. Attack was

the defense against attack.

Gradually, however the power of the community exceeded the strength of the

individual and the community began receiving part of the victim's compensation.

The next step was for the state to claim all monetary compensation due to a victim.

The victim was stripped of financial compensation and of psychological satisfaction

of avenging the crime. This was the turning point for victim and criminal alike, for

the criminal forfeited the opportunity to make a private peace with the victim or his

relatives. Crime became a public affair and the victim could neither punish the

criminal nor absolve him of guilt.

Nevertheless, in ancient communities, victims were in the central arena it the

criminal justice system. With the growth and development of societies and

emergence of concept of welfare state, the psycho-analysis of crime and criminals

were emphasized. The reformative concept of punishment served the criminals with

a view to shape their mind so as to stop them from committing the offence again.

When gradually the primitive groups were firmly established, the concept of

social control came into force and an offence against an individual was considered

as an offence against his clan and tribe. This can be considered as the emergence of

the concept of collective liability. Later with the growth of societies and governance,

the state took the responsibility of criminal justice with codification of the legal

norms.

In ancient India, law was a precept based on ethics and piety and on social

need and propriety. It was an ordinance for the conduct of daily life and code of

conduct mostly to govern the major principles of socialization. Criminal law was

89

considered an organ of vigilance to protect the citizens from harm and foul plays and

from deprivation of their rights. The king was the final authority for the award of

punishment and he had the prerogative of pardon. Once pardoned by the King, the

sin of the commitment of crime used to get automatically washed. It was ordained

that if after undergoing the King's penalty for the prescribed manner and period,

anyone even casually got referred for his past record of misdeed by his fellowmen,

then the latter "shall be guilty of defamation and have to pay a sum as fine. The half

of the fined money shall go to state and remaining half to the aggrieved party."9

Indian penologists of those days used the concept of mens rea with due

emphasis while put best weight in their effort to educate public in preventing

stigmatizing individuals as a doubtful or dangerous person or as permanent thorns of

society. Labeling any 'state offender' irrespective of age and sex remained not

recorded any where in ancient Indian law texts. Reviewing the recommendations of

ancient Indian Penologists, a highly comprehensive list of governing principles for

the award of adequate punishment had been incorporated in DANDAVIVEKA.

Family and community approach to control teenage deviancy was a general

principle. There was no record of police violence in the criminal justice

system/administration of ancient India, .contrary to police action of our time.

There were no less than fifty-seven authorities on penal laws in ancient India.

All of them were found unanimous in the following aspect aptly stated in

Mahabharata; "...the penal law is to be closely controlled by consideration of social

justice. Ancient lawgivers were never in favour of giving any rigidity to penal law.

They left no stone unturned to treat the criminals with the attitude of behaviour

therapist for restoration of good sense (Subhabudhi) in them through expiatory

methods. Husband had no legal right to punish his corrupt wife even." Vardhamana's

classification of cognizable offences, quoting Narada, is not different from modern

classification. Punishment was given for the correction of deviant conduct where

care was taken to prevent human devaluation of the convicts. Law of ancient India

prescribed severe penalty for raping an unmarried adolescent girl. When 2/3rd of sin

goes to culprit and 1/3rd to the victim, where she had indulgence, APSTAMBA

9 Narada Samhita

90

recommended long term custody and necessary treatment to curb uncontrolled

passion of the culprit. There was recommendation of mutilation of organs/limbs for

the hardcore incorrigibles to make him inescapable of repeating the misdeed.

The first and foremost duty of the King was to protect his subjects from the

bites of social thorns (KANTAKA) and treat them deservingly. Restoration of stolen

property, investigation of crime and victim compensation from the royal court was

included under law enforcement service programme. The King had to pay the cost

from the state treasury in case of stolen property was not found or recovered. A

detailed description of police organization of ancient India was described by

Kautilya, Manu, and Yajnavalkya. Slight dereliction of duty on the part of any

trained officer under the King remained open to punishment.10

People had the

training to respect and regard man as a subject of the King and pay due weight to

community sentiment. Among other, the following features of criminal justice

administration of ancient India deserve attention.

(1) A well organized espionage system under the King, who was known also as

CARACAKSUR MAHIPATIH. A detailed idea of its function and

techniques were incorporated by Kautilya.11

(2) Major consideration for investigating a murder case remained well described

in Arthshastra IV.

(3) Police interrogation must not be made dreadful. There were prescribed rules

and structured areas, which were to be followed strictly.

(4) There were clear directives for post mortem examination reflecting

Kautilya's insight for medical jurisprudence.

(5) Elaborate principles for detecting sex-offences and nature of victimisation

were clearly laid down in the texts of Apastamba, Manusmriti, and

Yajnavalkyasmriti. Sexual offences were regarded by them not only as an

offence against the person but also against morality and matrimonial right in

the social and legal codes. Ancient Indian literature affirmed that the

methods propounded in those days were put into practice by the then

10 Manusmriti : IX 272 11 Arthshastra I & II

91

administrator.12 As far as two hundred twenty-seven rules were prescribed by

Lord Budha to control criminality in human behaviour and reclamation of the

criminals through Sangha life (Parimoksha Sutra).

(6) According to Manu, "if a judge or his clerk fails to perform their duties or

divulge sub-judice court matters to public will receive punishment.

Yajnavalkya in Vyavahara chapter in his smriti laid down altogether three

hundred seven couplets to describe the dynamics of ancient Indian judiciary.

(7) According to Madhatithi and Brahaspati, and Sukraniti, king was the sole

authority in executing both punishment and pardon, not the court or judge.

Regarding pardon there were certain restrictions for habitual offenders.

In early civilisation, the responsibility of protecting oneself against crime and

of punishing the offenders rested with the individuals, which reflected the idea

ofretributive justice. As the societies got organized in the form of states, the

responsibility of protecting the members against criminal and punishing the violators

of criminal codes shifted to the political authority. The remedies however continued

to be based by and large on the restitutive justice, which required compensation, by

the wrong doer to the victim or his family members. This was the position obtaining

in the Old Germanic Law, Code of Hammurabi, Law of Moses and other ancient

systems. Later, the same ideas of restitution, along with the elements of retribution,

were followed in the Islamic legal system.

The next stage as reflected in the contemporary world was reached at the end

of the medieval age with the idea of crime as an act against the state taking firm

roots along with the vesting of more powers in the political authority. Even if

theoretically not unsound as such, in practice it gave rise to the unfortunate situation,

already alluded to, in which the victim of the crime, became an irrelevant factor in

the administration of justice; the state being merely concerned with the punishment

and to a lesser extent, reformation and rehabilitation of the offender.

The concept of the restitutive justice was sought to be revised in the 19th

century by some eminent criminologists like Garofalo and Ferri in Italy and

Bentham in England. Though Sweden introduced a system in which victims were

12 Varadachariar : Hindu Juris, pp. 237-238

92

paid compensation out of the fine imposed on the offender. Some concrete progress

was made in Europe, the United States and some other countries in late nineteenth

century.

The Geneva Congress (1896), Amsterdam Congress (1901), Christinia

Congress and Turing Congress (1906) were more attentive for indemnification of the

victims of crime.

Thus it can be said in western countries, during 19th century, most legislative

activity has occurred in the states, providing victim services, changing the criminal

process, emphasizing special groups, establishing victim rights, and dealing more

harshly with offenders. They were having greater say in trial and formulating

sentence. They enjoyed numerous protection and rights till emergence of states as

welfare states where in victim slowly eloped from the criminal justice system.

4.2 MODERN CRIMINAL JUSTICE SYSTEM

4.2.1 THE INTERNATIONAL PERSPECTIVE

The victim of crime, after occupying a position of almost complete obscurity

for centuries, has now emerged and been accepted as a person worthy of attention in

nations across the world. The interest in the victims of crime has been quite rapid in

the nineteen seventies and eighties during which time many international symposia

were held to focus attention on the victims of crime. In 1979, the World Society of

Victimology was formed and the Seventh Congress on Prevention of Crime and

Treatment of Offenders in 1985, focused attention on the problem. In recent years,

almost all the countries of Europe and North America have passed legislation to

protect the interests of crime victims.

Justice Benjamin N. Cardozo of Supreme Court of the United State. "Justice,

though due to accused, is due to accuser also. The concept of fairness must not be

strained till it is narrowed to a filament. We are to keep the balance true". Even so

crime victims have not been treated fairly. Somewhere along the way the system

93

began to serve lawyers, judges and accused, treating the victim with institutionalized

disinterest.13

In a seminar on Criminal Law held in New Delhi some years ago, Lord

Denning of United Kingdom, said "So far as concerns compensation for victims of

crime, we have a system whereby the victims of violent crime, such as murder, are

paid ex-gratia sums by the State...." This not statutory scheme is really unique and

working well there.

A. VICTIMS AND DIFFERENT NATIONS

Until a few years ago, research and practice concentrated mainly on the

accused. In recent years only an attempt was made to study the present position of

the victims and also the progress that is taking place in the assessment and

improvement in the position of the victim in the international perspective. In this

light, appropriate inference and overall position has been drawn of the victims under

the law of different countries.

New Zealand passed a statute entitled, "Compensation of Persons injured by

Certain Criminal Acts and of Department of persons killed by such Acts," on 1st

January 1964. The statute established a Crimes Compensation Tribunal, which is

given power to conduct enquiries and to award compensation. The offences covered

by the Act are 27 in number, all having to do with violence against the persons.

The Swedish Day fine system is said to be a refinement of the provision of

compensation to victims of crime. In this system, the Magistrate first decides the

quantum of sentence, proportionate to the nature and gravity of the offence. He then

determines the amount of fine, which is related to the offender's assets and

liabilities. Then the amount of fine per day, which the offender can spare by way of

compensation, is computed.

More than ten American States are reported to be considering the similar

compensation plans and their schemes have been more than the British in scope and

success. The California Programme (1965) has linked victim compensation to public

13 The Statement of the Chairman, US President's Task Force on actions of Crime Final Report

(1982) Quoted in Snyder Vs Massachusetts (1934)

94

welfare assistance programme. It provides for the indemnification of citizens who

are personally injured or suffer property damage while aiding in the prevention of a

crime of apprehension or a criminal, but the programme is administered like a local

charity.

Under the New York Programme (1966), the state is permitted to offer

financial compensation to innocent victims of violent crimes at the discretion of a

three member Crime Victims Compensation Board.

In Japan, the court often advises the defendant to make restitution of money

stolen or to make other preparation to the victim before it makes up its mind to place

him under probationary supervision.

In the Soviet system, at the end of the criminal trial, the case is made over for

civil adjudication of damages. The need to take all the evidence de novo and all the

trouble of filing a fresh suit are avoided. This "flexible procedure and concern for

bringing down litigation cost by telescoping civil and criminal proceedings" has

been commended by Justice Krishna Iyer of Supreme Court of India as "a blessing

for the poor" and as suitable for adoption in India. "It does not violate any principle

of jurisprudence, although liberties with orthodox concepts of civil and criminal

courts as two totally dissimilar jurisdictions may have to be taken."14

The European committee on crime problems, which came into being in 1956,

has played a notable role in formulating policies to deal with crime. From early

seventies onwards, the Council of Europe has been focusing its attention on issues

concerning victims of crimes dealing with various aspects like compensation and

assistance to crime victims. The Council has also made endeavours to procure a

more effective position for the victim in the criminal justice system. The central idea

is to give a better deal to the victims without adversely affecting the legitimate rights

and safeguards available to the offenders. Prevention of vicitmisation is also an

important part of the overall strategy in this direction and dissemination of relevant

information to the potential victims can be much useful to achieve the objectives in

this regard. The public is to be provided information on the technical facilities

14 Indian Journal of Criminology, Jul 1973, p.11

95

available and appropriate action to be taken to prevent offences from being

committed.

In the first report submitted in Oct 1965, by the British Criminal Injuries

Compensation Board observed the following:

The need in the modern state for a scheme for the compensation of victims of

crimes of violence has been well shown even during the few months of the running

of this scheme. It is true that many of the applications submitted relate to

comparatively minor injuries and the compensation paid correspondingly small. But

no one who is called to deal with those cases in which a blameless victim has been

seriously disabled, sometimes for life, or with those cases in which the elderly or

infirm have suffered injury and shock, can fail to feel deeply what a worthwhile part

is played in the full administration of justice by the power to award compensation.15

The newly generated interest in crime victims has led to certain trends and

policies encrypted in criminal justice systems of many countries. Some of those

policies are as enumerated below.

1. It is being increasingly realized that the victim must be accorded the dignity

and respect by the criminal law agencies viz. the police and the courts. As a

matter of fact, quite often secondary vicitmisation results because of the

indifferent and callous attitude not only of the criminal law agencies but by

the people in the vicinity, hospitals and the mass media as well.

Understandably, the police regard the victim primarily as a 'source of

information' only and for them he may even be a 'poor' or 'useless' witness.

In the USA and some European countries, statutory guidelines in the form of

"victim's bills of rights" are being provided. Many states funded and

voluntary victim services are also made available.

2. A victim has hardly any role in the criminal trial though there is an

increasing awareness now that the victim must be given rightful participation

opportunities in the trial instead of being just a helpless and passive spectator

to the court proceedings. Efforts are being made to remedy the situation. In

the USA, for instance, under the Victim-Witness Protection Act of 1982,

15 As cited in Federal Probation Vol 30 No. 2, p.3.

96

victims are to be consulted in the plea-bargaining process. In Germany,

compensation is now playable to a victim if the charges are dropped against

an offender.

3. Innovation use is being made of certain sentencing techniques like probation

to provide relief to the victims. An offender, in appropriate circumstances,

may be released on probation if willing to compensate the victim. In

England, under the Criminal Justice Act of 1982, as amended in 1988, the

court must specify the reasons for not making an order for compensation.

4. In certain kinds of situation, where the guilt of the offender is clear, efforts

are made to bring the wrongdoer and victim together in order to lead them to

agreements or adjustments for the restoration of losses of the victim; there

being a greater potential in this kind of approach rather than the mere

punishment of the offender.

Compensation are payable in the United Kingdom under the Criminal

Injuries Compensation Scheme, 1964. A Criminal Injuries Compensation Board was

constituted which was later transformed into a statutory body under the Criminal

Justice Act of 1988. The basis of quantum of compensation is the same as that of

damages in civil injuries and the money payable is for pain and suffering, loss of

earning capacity and out of pocket expenses. Under the revised scheme of 1973, it is

now possible give compensation for injuries caused by one family member to

another.

B. ACTIVITIES OF UNO

Only few years ago, United Nations Organisation has initiated movement in

which way the situation of crime victims might be improved. The seventh United

Nations Congress on the Prevention of Crime and Treatment of Offences took place

in Milan during August-September 1985. The Congress recommended to the United

Nations General Assembly, for the rectification of "Basic Principles of Justice for

Victims of Crime and Abuse of Power."

97

On November 29, l985, the General Assembly of the United Nations adopted

the 'declaration of Basic Principles of Justice for Victims of Crime and Abuse of

Power.' This declaration, the first specifically concerned with societal responses to

the needs of victims, establishes standards that take into account the variety in

prevailing legal systems, social structures and stages of economic development of

the Member States. The declaration, concerning victims of crime, establishes

standard for access to justice and fair treatment, restitution from the offender,

compensation, compensation from the State, and assistance towards recovery. The

declaration calls upon States to take the necessary steps to give effect to the

provisions in the declaration and to curtail victimisation.16 In particular, the

declaration specifies certain ways in which victims should have access to judicial

and administrative procedures and how they should be treated fairly.

The declaration says that victims should be treated with compassion and

respect for their dignity and entitled to. prompt redress. The victims should be

informed of their rights in seeking redress through formal or informal procedures the

expeditious, fair, inexpensive and accessible.17

The responsiveness of judicial and administrative process should be geared

to serve the needs of the victim. The victims should be informed of their role and

scope, timing and progress of the proceeding and disposition of their case. Offenders

or third parties responsible for the crime should make fair restitution to victims, their

families or dependants. Such restitution should include the payment for harm or loss

suffered, reimbursement of expenses incurred as a result of victimisation. And also

the governments should help to adopt practice, regulations and laws to consider

restitution as an available sentencing option in criminal cases.18

When the compensation is not fully available from the offender or other

sources, the State should endeavour to provide financial compensation to victims

who have sustained bodily injury or impairment of physical or mental health as a

result of crimes. And also the family, in particular the dependants of the deceased or

persons who have become incapacitated as a result of victimisation should be

16 Para 4 of the Preamble of UNO. 17 Para A-5 of Declaration for Basic Principle for Victims of Crime and Abuse of Power. 18 Extract from Declaration for Basic Principle for Victims of Crime and Abuse of Power.

98

provided with compensation by the State. Victims should be provided with

necessary material, medical, psychological and social assistance through

governmental and voluntary organisation. Police, Justice, Health and other personnel

should be sensitized to the needs of victim.

C. REVIVAL OF THE VICTIM : GLOBALLY

The advocates of restitution and defenders of the victim's role in the

judgement of crime did not look on with folded arms. They could not accept the

deterioration of the victim's position. They thought of the victim's problem only in

relation to his compensation. Sir Thomas More suggested in 1516 that restitution

should be made by the offender to their victims and that offender should be required

to labour on public works.19

The philosopher Herbert Spencer in the last century proposed that the

prisoner's income derived from prison work should be utilized for making reparation

to his victim and that he should be kept in prison until restitution is completed. In

1847, Bonneville de Marsangy outlined a plan of reparation,20 and later on, several

international prison or penitentiary congress enthusiastically argues for the

reparation to the victim of crime. At the International Prison Congress held in

Stockholm in 1878, Sir George Agnue, Chief Justice of New Zealand and William

Tallack, a British penal Reformer, proposed a return in all nations to the ancient

practice of making reparation to the injured. Raffaele Garofalo raised the question at

the International Prison Congress held in Rome in 188521 and wrote that reparation

to the victim is "a matter of justice and social security". The problem was also

discussed at the International Prison Congress held at St. Petersburg in 1890 and the

19 Sir Thomas Mores Utopia: "Reparation or Restitution by the Criminal offender to his Victim:

Applicability of an Ancient Concept in Modern Correctional Process". Journal of Criminal Law,

Criminology and Police Science, Vol. 61 (1976) p. 162. 20 Edwin H Sutherland and Donald R Cressey: Principles of Crirninology (1966), p. 331 21 Samuel 1 Barrows: The Sixty International Congress, Report of its proceedings and conclusion,

Washington (1903) p.23

99

International Penal Association Congress held at Christinia in 1891. At this

Congress the following conclusions were adopted.22

1. Modern law does not sufficiently consider the reparation due to injured

parties.

2. In the case of petty offences, time should be given for indemnification.

3. Prisoner's earning in prison might be utilized for this end.

It has frequently been noted that the separation of civil and penal function is

a serious defect in the system of fines, which go only to the state, while the injured

victim suffers all the hardships of the civil process. However, except for sporadic

efforts, there is still a tendency to move the question of compensation or restitution

more and more out of criminal procedure, probably in the desire to keep the victim

from being involved in it. The argument clearly indicates that the victim is not

accepted as an important role player in crime. History suggests that growing interest

in the reformation of a criminal is matched by decreasing care for an interest in the

victim.

The victim is continuing to loose ground. If one examines the legal systems

of different countries, one rarely finds an instance in which the victim of a crime can

be certain to expect full restitution.

There is hardly any system, which takes fully into consideration the victim's

contribution to a crime in those rare cases where there is state compensation, the

system either is not fully effective or does not work at all. Where there is no system

of state compensation, civil procedure and civil execution generally offer the victim

insufficient compensation. While the punishment of crime is regarded as the concern

of the state, the injurious result of the crime, that is to say the wrong or damage to

the victim is regarded almost as a private matter. It recalls the lonely man of the

early days of social development, who by himself had to find compensation and who

by himself to take revenge against those who harmed or otherwise wronged him.

Today's victim cannot seek satisfaction on his own, since state forbids him to take

the law into his own hands.

22 Wrote in the work of Stephen Schafer

100

However, the process of balancing the position of offender and victim in

criminal procedure is a very active and dynamic one and by no means crystallized or

completed in western European countries, U.S.A., Australia and New Zealand.

4.2.2 INDIAN PERSPECTIVE

The concept of victim rights as whole has been in shackles in India since

ancient times. The right is coupled with duty and privileges. The advent of British

system of jurisprudence added new dimensions to the concept. It influenced the

Indian political and social thinkers who gave prominence to the rights oriented

social system, wherein these rights meant individual rights under the codified law.

Since individualism prevailed over the collective existence of human being, the

judiciary too applied innovation techniques to recognize the individual as a subject

of right by extending the meaning and scope of rights. The rules of local standi,

which provided mainstay to individualistic rights, were liberalized. The judiciary not

only protected the rights given in the written chapters but created new position rights

also. Judicial decisions contributed tremendously to bring out essence of

fundamental rights enshrined in the Indian Constitution.

But, one must not loose the sight of the fact that the most important object of

criminal law is undoubtedly in the protection of primary personal right to life,

personal liberty and property in their wider connotations against unlawful invasion

by other- the lawless, disorderly, the violent, the fraudulent and the predatory.

There has been tremendous development and changes in Indian system since

primitive times. Under the current systems, the state undertakes to protect the public

against crime and then, when loss occurs, takes the entire payment and offers no

effective remedy to the victim.

The befitting remarks concerning victim's position in India by Justice

Krishna Iyer of Supreme Court is highly relevant; "Tears shed for the accused are

traditional and 'trendy' but has the law none for the victim, an unknown martyr?"

Undoubtedly, the comment represents the Indian position on crime victims.

101

A. VICTIM IN INDIAN CONSTITUTION

India as a nation and the people of India are wedded to the concept of rule of

law and supremacy of constitution. The constitution of India guarantees equal

protection to all and forbids the state from depriving "any person of life, liberty and

property" without procedure established by law. Social justice which is signature

tune of the Indian Constitution has its overtones in the criminal justice system too.

There is nothing superfluous in giving a victim oriented approach to the criminal

justice system by seeking constitutional foundation to it. Thus, it is the right of the

individual to remain free from being victim of crime.

Despite plentiful and sufficiency of constitutional provisions, our criminal

justice system in India seems to impose a mindless permissiveness towards the

accused and the convicted criminals with the corollary of subordination to the rights

of the victims, and it appears that for all intents and purposes they are overlooked.

It is common knowledge that the criminal justice system is on the verge of

collapse. A reasonably good system has deteriorated over a period and now it is

found to be functioning unreasonably badly. Our society often engages in the

discussion on the constitutional rights of the suspected or convicted offender, there

has been little debate on the question- how far the constitutional rights of the crime

victims have been identified, recognized and upheld or violated.23

It is widely believed and perhaps justifiable also that the present criminal

justice system is heavily loaded in the favour of the accused because in the

accusatorial system is presumed to be innocent till proved guilty. The right of an

accused and a convict are well safeguarded both by the Constitution and other laws

of the country but the right to assistance in respect of victims of crime is totally

neglected and ignored by the law and lawmakers.

The concept of social justice will never be meaningful or complete in the

absence of justice to the victims of crime. The human values of Part III and IV of the

constitution also have vital bearing on the criminal justice. To read as, "We the

23 Vidya Bhusban: Prison Administration in India, S. Chand, Delhi (1970) and K Chandra: The Indian

Jail: A Contemporary Document. Vikas, 1983

102

people of India, justice-social, economic and political, equal protection of law,

dignity of the individual, basic freedom, fair procedure and free legal aid"- these and

another sacred pro human provisions enshrined in the constitution humanize the

system of social defence through criminal law. These rights and values are implicit

in our constitution, which, however have been believed to be innocently ignored by

the criminal justice system i.e. by our Police, Prosecutors and Courts.

The presumption of innocence till proved guilty gives rise to various

constitutional and legal rights in so far as the founder is concerned. His rights, like

the right to be produced before the Magistrate within 24 hours of his arrest under

Article 22(2) of the Constitution of India and Sections 56 and 57 of the Code of

Criminal Procedure; the right to know the grounds of arrest as provided by Article

22(1) of the Constitution of India and Sections 50 and 173 of the Code of Criminal

Procedure; the right to engage and be presented by a counsel of one's own choice,

Sections 303 and 304 of Criminal Procedure Code and Article 22(1) of the

Constitution; the right to legal aid at State expense in certain cases, Sections 304 of

Criminal Procedure Code and Article 39 of Constitution; the right to bail; the right

to public trial under Section 327 of Criminal Procedure Code; the right to test the

evidence for the prosecution on cross examination under Sections 137, 138, 143 and

145 of the Evidence Act; the right to have an opportunity for explaining the

circumstances appearing against him in the evidence; the right to be heard about the

sentence upon conviction; immunity from compulsory testimony under Article 20(3)

of the Constitution, presumption of innocence through out the trial, Sections 102 and

105 of Indian Evidence. Act and so on and so forth.

The examples of Constitution and other legal provisions for the safeguard of

victims clearly announce the absence of will of people and its representatives to

implement those provisions in letter and spirit.

103

B. VICTIM IN THE PRESENT CRIMINAL JUSTICE SYSTEM

"To much mercy often resulted in further crimes which

were fatal to innocent victims who need not have been

victims if justice had been put first and mercy second."

-Dame Agatha Christie

There is a belief and acceptance that the present criminal justice system is

heavily loaded in favour of the accused because in the accusatorial system he is

presumed to be innocent till proved guilty. The right of an accused and a convict are

will safeguarded both by the Constitution and other laws of the country but the right

to assistance in respect of victims of crime is totally neglected and ignored by the

laws and lawmakers.

The criminal justice system in India seems to impose a mindless

permissiveness towards the accused and the convicted criminals with a corollary of

subordination. To the rights of the victims, it appears that for all intents and

purposes they are overlooked.

Unaware public and limited research in the field of victims problems and

perceptions of the Criminal Justice System has attributed to the government not

doing much for the victim because until very recently the general public entertained

somewhat ambivalent attitudes towards victims, often lumping them together with

the offender and has not put pressure on government to help them.24

In the present system, a crime is distinguishable from a tort. If an act is

demarcated as a crime, it entails a penalty which is enforced by the State in most

cases independently of the desire of the injured person or his party. In the modern

societies, the State has assumed the responsibility to protect its citizens from crime

and has taken over the exclusive right, in the collective interest of the community, to

punish offenders. However, the State accepts no responsibility for injury to the

victim. In the present system, the victim has been left to play a distinctly secondary

role. Once he reports the crime to police, it becomes the public cause of action. It is

24 Elearnor Chelimsky: "Serving Victims: Agency incentives and Individual Needs" in evaluating

victim services.

104

treated as an offence against the State which gets investigated by its agency; it

decides whether offender should be prosecuted or punished and if it decides

prosecution move the court for trial of the offender in a court of law. His injury

becomes the occasion for a public cause of action, but he has no standing to compel

prosecution of the crime against him or to contest decisions to dismiss or reduce

charge or to challenge the sentence imposed on the offender who injured him, or to

press for hearing on restitution. Even after the case ends up in a conviction, it is the

State which defends the judgement of the trial court in appeal, if any, filed against

the conviction and sentence. The victim of crime has hardly any role to play in the

whole proceeding except that he may, be examined by the prosecution as a witness.

The victim has no standing to compel prosecution of the crime against him or to

contest decision of acquittal or to reduce the charges or to challenge the sentence

imposed on the offender who injured him, or to press for hearing on restitution.

Under the Code of Criminal Procedure, a victim of crime has got a very limited right

of revision and that too under exceptional circumstances. Neither at the stage of the

framing charges or passing an order of discharge are the views of the victim

ascertained, let alone considered. He is not to be consulted.

A victim of the crime thus, feels uninvolved in the crime against him and that

makes him regard criminal law as unresponsive to his concerns. He feels that he is

not a "party" but a "mere witness".25 It humiliates and frustrates him when the

offender goes unpunished or is let off with the relatively minor punishment as the

present system pays no attention to his injured feelings. This indifference to his

rights is fast eroding the faith of the society in general and the victim of the crime in

particular, in the criminal justice system. Emotional assistance or charity has its own

limitations. A permanent mode of compensation has to be worked out. It may also

be worth considering as to whether the State which fails to protect the life and

property of the citizen not be made to pay compensation to the victim of the crime

because provisions for payment of compensation, with all its limitation, are rather

illusory.

25 Abraham S. Goldstein: "Defining the role of the victim in criminal prosecution, Mississippi Law

Journal, Vol.52 (1982) p.520.

105

It is strange that in spite of the fact that a victim of crime, who suffers at the

hands of the accused and moves the State through the police or the courts to seek

justice, its given the impression that after having lodged the report or the complaint,

he is "Mr no body".. Even where he engages a counsel, during the trial of a case,

instituted on a police challenge or at the hearing of the appeal, his counsel is treated

only as a 'counsel by sufferance' and may or may not be heard by the court

depending upon the attitude of the State counsel. He can at best assist the public

prosecutor but also in case the public prosecutor really wants to be assisted by him.

It is also ironic that an accused has the statutory right to be heard on the question of

quantum of sentence after conviction is recorded, but unfortunately a victim of the

crime is not so heard.

The Code of Criminal Procedure 1973, in its provision under section 357

deals mainly with the compensation to crime victims. Some other provisions also

have some bearing are Sections 237, 250 and 358 of the Code.

Section 357(1) says that, "Whenever under any law in force for the time

being a criminal court imposes a fine... or a sentence of which fine forms a part, the

court may when passing judgement, order the whole or any part of the fine

recovered to be applied:

(i) In defraying expenses properly incurred in the prosecution;

(ii) In the payment to any person of compensation for any loss or injury caused

by the offence when compensation is, in the opinion of the court, recoverable

by such person in a civil court;

(iii) When any person is convicted of any offence for having caused the death of

another person of having abetted the commission of such an offence in

paying compensation to persons who are, under the Fatal Accidents Act,

1855, entitled to recover damages from the person sentenced for the loss

resulting to them from such death."

The court has a very limited discretion under Section 357(1); it can give

compensation only out of fine if imposed on the offender. The court has, however,

much more discretion under sub-section (3) of Section 357; though only if fine does

not form a part of the sentence. Theoretically, the power of the court is unlimited,

106

though practical considerations would always prevail. A magistrate can order for

higher compensation than the amount of fine he can impose. In the case of Sarwan

Singh Vs State of Punjab26, the Supreme Court, in awarding compensation, directed

that the court should not just consider what compensation ought to be awarded to the

heirs of the deceased and then impose a fine which is higher than compensation.

The Supreme Court of India has expressed its disapproval of combining the

punishment of fine with a death sentence and even with life imprisonment. Though

for the offence of murder courts have the power to combine a sentence of death with

a sentence of fine, that power is sparingly exercised because the sentence of death is

an extreme penalty to impose and adding to that grave penalty a sentence of fine is

hardly calculated to serve any social purpose..., even a sentence of life imprisonment

is seldom combined with a heavy sentence of fine. It is thus evident from the above

cases and judgement that only marginal action is possible under Section 357 of the

Code of Criminal Procedure to compensate victims of crime.

However, it is not the monetary compensation alone which will bring solace

to a 'victim' but what is more important is the speed with which his grievance should

be attended to and if possible redressed to his satisfaction, when found genuine. If

the prisons are hospital for the criminals, there is no reason why a police station and

the court of law should not be the places where a victim of the crime is heard with

respect and treated with sympathy he deserves. There are various ways to ensure

this. The first being the place where the victim has to first reach to seek redressal of

the grievance, which incidentally is either a police station or the court premises.

Unfortunately, as it is, neither of the two is an attractive proposition for the victim. If

he is hesitant to approach the police station for the reasons which are by no means

unknown, his reluctance to approach the courts is also not without reluctance,

because both the forums available to him suffer from one or the other weaknesses of

the system and create a feeling of helplessness in him. The fear of police officer,

who in this country, has yet to acquire the status of a friend.

The victim of crime avoids to go to police for redressal of his grievances.

The police in this country, with exceptions here and there, have unfortunately failed

26 SCC 111 (1978)

107

to inspire confidence in the minds of the people generally. There are complaints of

police indifference to the victims when they go to report the crime and this

indifference not only discourages him but also makes him an object of ridicule, for

his failure to meet the challenges of his adversary. The victims of the crime have

often been heard to complain that the police refuge to record the first information

report of an offence and at one time the grievance was so wide spread, that the

legislature has to step in and bring forth an amendment in the Code of Criminal

Procedure to make it obligatory for a Station House Officer to furnish a copy of the

first information report to the complainant. The complainant leaves the police

station, more often than not, with feelings of deep regret for having gone to the

police station at all. This may be because of the fact that the policemen today are

over burdened or that he has a variety of roles to perform.

However, even after suffering all that what is attributed to the police, the

ordeal of the victim does not end. It rather begins afresh with the presenting of the

charge sheet in the court when he is to wait for summons for his appearances as a

witness and his experience as a witness is also by no means happy. The provisions

of the Evidence Act regarding relevancy of facts notwithstanding, he is allowed to

be grilled by the defence counsel, as if the process of cross examination is a never

ending process and judge is merely a recording machine depending upon the

standing of the counsel and the time at his disposal. The volley of question which he

has to answer while standing in the witness box confuses him so much that the

victim at times is forced to make concessions, out of sheer helplessness and

frustration.

This is the second time when the victim finds himself in an atmosphere

which is not only unfriendly but hostile to him. His disgust with the court also

begins but still he waits for the outcome which will finally determine his out look

towards the criminal justice system as administered by the courts with the help of

the prosecuting agency. If it results in conviction that gives him immense

satisfaction, more than what money compensation could and if it is accompanied

both by punishment and compensation, nothing more could be expected by him. He

108

will forget all that he had to undergo to see the day, as he goes back to the society as

a champion of the cause of justice and ensures a place for himself.

In this way society is also served as respect for law is maintained, the crime

is punished and the criminal discouraged. This is one aspect by what happens when

the result is otherwise. It is here that the victim's rights are required to be identified,

recognized and protected. The acquittal of the criminal does not mean that there was

no victim of crime.

But unfortunately, the courts ignored the interest of the victims while they

have been busy quite properly, in protecting the interest of the accused or defendant.

Not only courts but also the criminal justice establishments including legal scholars,

lawyers and criminologists have largely ignored the victim.

Discontent with the plight of the crime victim is heightening as crime and

violence is rising at an exceptional rate. As the crime rate is increasing day by day

people maturely began to perceived themselves as potential victims. They even

prefer to hide their plight rather than confront suspicion and hostility.

The victim's experiences with the professionals of the system- police,

lawyers, court officials and those running compensation agencies are rarely

considered, but will affect their attitudes to that system. If victims come to regard

their treatment as too stressful, demeaning, unfair, distorting of reality, too remote or

too little concerned with their own rights, feelings and interests or if decisions are

made which are felt to be unsatisfactory, it is possible that this 'secondary

victimization' by the system may lead to disenchantment, disinterest and future non-

cooperation, not only by the victim, but his friends and relatives.

In a system still largely focused on offenders and often ignored on victims,

the studies in bringing about the treatment of police and other judicial machineries

has an important bearing on the victims welfare. Victims seem to come third in

police priorities after convicting offenders and preventing crime. Moreover, their

work is often biased by sterotypes of victims as deserving, innocent, negligent, and

provocative and so on. The number of victims who have dealings with the courts is

much smaller but impact can be much more traumatic ranging from not even being

told that the trial is taking place to being publicly humiliated by a defending

109

barrister. As a matter of fact the victims are re-victimized by the criminal justice

system itself.

4.3 VICTIM'S PERCEPTION OF CRIMINAL JUSTICE

SYSTEM

4.3.1 INTRODUCTION

Crime is on increase all over the world. India is no exception to this universal

trend. It means that larger and larger segments of people are victimized, exposed to

risk, anxiety, grief, trauma and despair. Law defines crime. It also lays down

procedure for dealing with crime. The IPC, special and local laws, the code of

Criminal Procedure and Indian Evidence Act are inter alia instruments devised by

law to sub-serve its purpose. But they are not machinery capable of working on

auto-pilot. To deliver goods they need activation by the functionaries of the Criminal

Justice System.

There is a remarkable consensus that our criminal justice system Police,

Prosecution, Court and Prison are doing badly in dealing with the crime problem.

That consensus reflects a perversive feeling that the criminal law and the threat of

sanction standing behind it, is not taken seriously. The decline of faith in the system

of public order has had a corrosive effect. The victims report fewer crimes to the

police because they do not expect them to be responsive.27

The victim's experiences with the professionals operating the system, police,

lawyers, court officials and the judges/magistrates who decide the case are rarely

considered, although they would affect the formation of definite attitudes on the part

of the victim, towards that system. If victims come to regard their treatment as too

stressfull, demeaning, unfair, distorting of reality, too remote or too little concerned

with their own rights, feelings and interests or if decisions are made which are felt to

be unsatisfactory, it is possible that this "secondary victimisation" by the system

27 Abraham S. Goldstein: Defining Role of the victim in Criminal Prosecution, Mississipi Law

Journal (1982) p. 515

110

may lead to disenchantment, disinterest and future non-cooperation, not only by the

victim, but also by his friends and relatives.

Once a victim reports a crime to Police, the Prosecutors and Judge take over.

It has been seen in most cases that law enforcement officials decides as to how much

attention to be given to complainant and how to classify or define the offence. For

the most part, victims are considered irrelevant. Instead what was once a private

matter now becomes the business of strangers to be handled mainly as they see fit.

The working assumption of the criminal justice system is that, despite this transfer

of interest, the victim will come forward and cooperate, because although the State

brings the prosecution, yet without the victim's cooperation, there may not be a good

case made out. Such cooperation is not always forthcoming.

Victim's perspective about judicial process can be considered quite

obviously. Victims are introduced to a system grounded on the legal fiction that

victims are not the injured party. They soon learn that they have no standing in

court, no right to counsel, no control over the prosecution of their case and no voice

in its disposition.

4.3.2 MEETING THE POLICE

The victim's first contact with the criminal justice system is with the police.

Most often the police will remain the closet agency to the victim throughout the

investigation of the case and the prosecution of the offender. For those victims

whose assailants are not caught, the reaction of the police is, therefore very

important. The reverse, however, is also true, since victims play a major role in the

reporting and investigation of cases and in the detection of offenders. Police and

victims are mutually dependent for the successful prosecution of the offender.

For the victims however, another fact comes into play when the crime

acquires an official identity. The victim will become caught up in the various stages

of a process which may involve many different agencies. He may drop out of that

process, but, after the police are involved, the offence will have become recorded as

111

a "crime" and the victim as a "complainant". The offence will be processed

according to provisions of the Criminal Procedure Code.

When the victim first meets the police, he becomes caught up in the police

process of investigating the offence and catching and prosecution the offender. Once

he has decided to report the case, much of the power to direct the way the case

proceeds, passes to the police. At the same time, the victim requires an emergency

response by the police to provide aid assistance. The nature of the first meeting with

the police will obviously vary for victims in different circumstances and with

different degree of injury. The police have a set routine which should be performed

when first arriving on the scene of an offence. Police officers are concerned to

discover what has happened and what the victim's complaint is to attend to the

victim's immediate physical needs, to acquire a description of the scene of the

offence if they are at that place and to ascertain what future action is needed.

Victims often rates police as being unhelpful. Evaluating police performance

is crucially shaped by people's prior attitudes and expectations. They are not happy

about the attitude of police men. This is not merely the problem of "attitude"; it can

be seen as symptom of much deeper problem, a misunderstanding on the part of the

people role. Victims expect support and reassurance from the police both at the

initial meeting and subsequent.

The most common problems suffered by many of the victims while reporting

an offence is the absence of respective and sympathetic attitude from police towards

the victims who has come with all mental tension caused by the mental or physical

or moral loss resulting from the crime. Occasionally, in addition to the helpful

attitude, the harassment of victim of crime by the police is not an uncommon

feature.

The detection of crime is a significant aspect of the criminal justice process.

The victim, being the recipient or sufferer of the consequences of the conduct of the

accused person, has to play a crucial role in the process of identifying the offender

and establishing the essential grounds for ensuring that justice is done. The worries

of victims about the attitude of the police, that the police do not necessarily value the

victim as an important part of the criminal justice system and that they do not

112

necessarily see their role as offering emotional support to victims. Because the

victim is not sufficiently valued and appreciated (even for his part in reporting,

detecting and prosecuting), it is not seen as vital to respond to his needs as opposed

to, for example, those of pursuing the offender or preparing a prosecution case

swiftly. Police officers interviewed varied considerably in their view on whether

they should play a role in providing victim support.28

Various studies on victims of different offences and from different countries

have found remarkably similar results at the initial encounter and that any

dissatisfaction is related primarily to an uncaring, routine or hostile attitude on the

part of the police, the police refusal to take action and to general unthoughtfullness

or disregard of obvious victim needs.

4.3.3 INVESTIGATION OF OFFENCE AND VICTIM

Once an offence has been reported to the police, the focus for determining

subsequent action moves from the victim to the police. The police will be concerned

with gathering evidence so that the accused can be prosecuted. The victim will be

involved in or concerned with many of these activities and decisions, but it is the

police who will usually set the time table and control what is happening. In offences

the victim will often be a major prosecution witness. There are several steps

gradually taken by the police as a part of the process adopted by them in such cases,

although the precise steps adopted by them vary according to the relevance of the

case. Of all types of contact with the police, the most common was for the purpose

of making a statement about the offence. Checking up about details in the statement

eliciting further information or persuading the victim to take a particular view on

prosecution, together with victim attempts to contact the police themselves to

provide information was the next common category of contact.

Many victims believe that police is inefficient and corrupt as a result of that

there is a low rate of detection of criminal cases. For such people, there is no need to

28 Joana Shapland, Jon Willimore and Peter Duff: Victim in Criminal Justice System, Gower, London

(1955) p. 30

113

seek the help of the police who are not capable of handling their problem and in

addition, would let off the criminal when bribed or would not so their duty as

expected unless bribed by the victim. Thus a considerable number of victims do not

trust police and would rather bear loss in silence then report crime committed

against them to the police, except where very serious crimes are involved. Now,

there is a growing tendency among the people not to report the crime to police as

studies reveal that most common reason given for failure to report are that the police

would not be bothered as they could not do any thing effective about it any way.29

The police have the ultimate power to decide whether to file a charge sheet

in any case. When there is disagreement between victim and police about deciding

upon the issue of prosecution, or otherwise it causes the utmost concern and anxiety,

where the police feel that there is insufficient evidence of a crime or where the

police consider that no purpose would be served by prosecuting particular offender.

The victim is expressing the central dilemma of a criminal justice system

with a centralized power of prosecution that of the ownership of the case. The police

need to have the power to initiate and continue prosecution, so that victim and

witnesses are not terrified into-dropping cases. Yet, if we move from an ideology of

automatic prosecution given sufficient evidence, to one of discretionary prosecution,

then overriding the wishes of the victim can be seen as dubious, unless everyone is

agreed on the circumstances in which this discretion will be used.30 Many victims

are actively involved in helping the police to detect the offender and to gather

evidence towards prosecuting the offender, taking part in many procedures to do

this.

The victim is vital to the police throughout the recording, detection and

investigation of the case to the police. Yet the police do not seem to be concerned to

fulfill the victim's need to be informed, occasionally consulted and treated with

dignity and respect. The victim does seem to be seen as a very important participant

in the criminal justice system. There are two contradictory facts on the role of the

victim- his practical importance and in contrast, in apparent ignorance of and an

ignoring of his attitude and his experience by those involved in recording and

29 P.R. Wilson, J.W. Brown: Crime and the Community, University of Queens, Land Press. 1973 30 Supra: f. n. 28 p. 46

114

investigating offences - the police. It is this paradox which we need to remember as

we follow the victim into the courts.

4.3.4 VICTIM AND THE COURT

Once the decision is made to prosecute an offender, control of the case

passes from the police to the courts. Throughout the process, three aspects are of

particular interest; what happened to the cases, whether (and how) the victims came

to learn about it and what they thought about it.

Whether an offender is allowed on bail by the courts or whether he is

remanded in custody is of great interest to victim. A particular worry of victims is

that they do not know whether the offender is in- custody or on bail. Now knowing

the whereabouts of the offenders, they were constantly afraid that they would meet

him unexpectedly in the street. However, where victims knew the offender is on

bail, this fact did not worry them duly, even though they might not agree with the

decision. It would appear that it was anxiety born of ignorance that produced

concern. Fear of the unknown was more frightening than knowledge of the feared

reality.

The length of time that take to come to trial vary considerably. If a case in

which the plea is not guilty, the delay is for years together. There are long delays,

particularly for not guilty trials at the magistrate's courts and courts of sessions,

victim face the problem of waiting for a long time to give evidence. This is the

subject of much worry. Victims feel that they would not be able to remember the

details of the offence and may perform badly. Nani A. Palkhiwala, eminent Senior

Advocate once rightly remarked that "the trial in Indian Courts is closest description

to eternity."

The victims generally have little idea of the progress of the case through the

various pre trial appearances. Victims are usually almost completely uninformed

about the progress of their case prior to the trial. The only information they may

receive from official sources - the summon is itself found to be uninformative, even

confusing and added to victim's worry. Most feel that the police or courts are too

115

busy to be bothered by them or that it is not their place to find out; it is up to the

system to inform them.

For those victims who do attend court, the experience is not confined to

answering question in the witness box or listening to what is being said. There are

the contracts they may have with the police and the courts when being summoned to

come to court. There is the experience of waiting outside the court room and the

contact they may have there with police officers, prosecution solicitor or counsel or,

of course, the offender. Even after giving evidence, there is the problem of obtaining

witness expenses and whether these meet the costs of victim in attending court.

The victim is not considered to have any special interest in the proceedings,

compared to any other prosecution witness. The court administrator's task is a

difficult balancing act, juggling available court time, judges, prosecution and

defence counsel's prior commitments and witness availability. Most victims

expected the defence to put forward some (false) story and did hot blame them for

saying that what the victim said was considered completely wrong or for trying to

make out the victim to be a liar. The victim does feel manipulated by prosecution

and defence, who use the structure of formal questioning to present their own view

of the offence. However, the victim's problems are not all the result of courtroom

tactics. They can also be seen as difficulties facing all lay participants in the

courtroom, exacerbated by the nature of the "ideal victim" portrayed in the

substantive and procedural criminal law.31

At court, the case is normally prosecuted, not by the police, but by a

prosecuting advocates acting for the police. Victims who did attend court, whether

to give evidence or just to watch the proceeding, find that prosecutors and police

officers did not live up to their expectations. In general, one get the impression of

the victims being isolated and confused at court, not knowing what they may be

required to do or what they are allowed to do. They do not realize what is happening

around them and it is rare for anyone to explain it to them. Police officers, when

they were present, did seem to make some efforts; prosecutors did not see it as their

31 Supra f. n. 28 p. 61

116

job. In a study by Kelley, it was found that rape victims felt they were denied

participation in and information about what they saw as 'their' case. Some also felt

their interests were not being represented by prosecutors.32 In sum, her victims

objected to the present workings of the criminal justice system, one which they

found, to their surprise, was not geared to perspective.

There is considerable inconvenience involved for victims who attend Court

which will definitely have a negative effect on potential victims going to the court,

even when they suffer due to crime. The most important problems of victim during

the trial is his plight in the court premises without absolutely any facility. A victim

or a witness who has a single experience of attending court for giving evidence

would never again in his life time to be put in that situation. This may include travel

costs, loss of earning, and difficulty in finding replacement staff at work or problems

in finding some one to look after children. The total financial cost of being a victim

over the whole period of the trial, including going to the police station and attending

court, can add up to over thousands of rupees for many victims.

There are number of other factors responsible for the unwillingness of the

victim to process the criminal case through the criminal justice system. The first is

that the criminal justice procedure is a time consuming one, especially in a

developing country like India where the necessary facilities to operate such a system

efficiently are lacking, for example, judges and magistrates have to record the

proceedings of the court by long hand. This tends to slowdown court procedure;

besides, it generally takes a long time for the police to investigate criminal cases.

Cases are usually adjourned on some reason or other. This also slows down court

procedure and in turn discourages the victim seeking the criminal justice system.

Thus, except in very serious criminal cases, a considerable number of victims would

prefer to suffer their loss in silence rather than go through the criminal justice

system.

The prospect of the case and the experience of the victims who report a

crime are such that they may feel unmotivated to make the efforts required to have a

32 D.P. Kelley: "Victims reaction to criminal justice response" a paper delivered at Annual Meeting of

the Law Society Association in 1982, Toronto.

117

case prosecuted. Victimisation studies of other countries demonstrate that a majority

of the victims even of serious crimes do not report their victimisation to police.33

It is seen that the victims dealing with the police and court are characterized

by his status as a non-person. Strangely, the area of victim compensation and

assistance seems very similar. Even the Criminal Procedure Code which provides

for compensation as an alternative to civil procedure for victims, so that they may

obtain financial assistance more quickly, more early and at less potential cost. But in

fact the prosecution never insist on compensation to the victim for his loss or injury

and so also the courts never liberally award compensation to the victims of crime.

Above all, victims want their personal interests recognized by the judicial

system. They are surprised to learn how little their opinions matter and how rarely

their interests are considered. They soon find that their role is like an expectant

father in the delivery room necessary for things to have gotten underway in the past

but at the moment rather superfluous and mildly bothersome.34 Victims want more

recognition from the legal system. Specifically, they want to be informed of

deliberations, included in case developments and offered an opportunity to

participate in determining what happens to their assailant.

It is paradoxical to note that the criminal justice system depends heavily

upon victims for the reporting and detection of offences and for the provision of

evidence in court. Yet, it does not appear to value the victim. The system is not

geared to the perspective of the victim. There appears to be mismatch between the

victim's expectation of the system and the system's assumptions about victim needs.

In the words of Howley, the police have become "preoccupied with technical

efficiency, whereas victims look to police for support and reassurance".35

It does not seem that the system ignores the victim because he is perceived as

a threat. Indeed, the victims were not expressing a desire to take over the criminal

justice system. They are happy that decisions to charge, to prosecute and to sentence

33 P.H Ennis: Criminal Victimisation in US: A Report of National Survey, University Press, Chicago

(1967) W.G. Skogin: "Citizen Reporting of Crime: Some National Press Data." 34 Gilbert Geis: Victims of Crime of Violence and Criminal Justice, Chappel & J. Mohan: Violence

and Criminal Justice, Justice, Lexington (1975) 35 J. Howley: "Victim-Police interaction and its effect on public attitude to police, a thesis in

Cranfield Institute of Technology. Quoted by John Shapland in "Victim, the Criminal Justice System

and Compensation", British Journal of Criminology, Vol 24 (1984) P. 131.

118

should be left with those who are doing it. There were some areas where victims

wished for consultation before decisions were taken by using mediation dispute

regulation procedure on whether charges should be pressed or dropped at court and

on whether information about victims should be given to the press.36

4.3.5 REPARATION AND MEDIATION : VICTIM'S OUT LOOK

Since many have criticized the criminal justice system for ignoring the

interests of victims, it is surprising to find that some of those in the victim's

movement, notably in the United States, have dismissed reparation without

considering what victims themselves think. This is particularly true with respect to

crimes of violence where some participants have denied that mediation is

appropriate. Equally, in Britain, some victims support schemes have been less

enthusiastic.

There was considerable percentage of victims who expressed their consent

for a mediation dispute regulation procedure in dealing with the cases.

In this context, Britain Crime Survey (1984) took particular interest and

provided the first comprehensive national data on what victims in general feel of the

prospect of reparation and mediation. For the first incident completed for each

victim, respondents were confronted with the following.

"The Government is considering schemes in which victims and offenders

would meet out of court in the presence of an officially appointed person to agree a

way in which the offender could make repayment to the victim for what he had

done. Would you have accepted a chance of such a meeting after this crime?"

Nearly 50 percent of victims replied in affirmative, with 45 percent rejecting

the idea and 5 percent undecided. These latter two groups were then asked if they

would have agreed to an out-of-court agreement where they would not have had to

meet the offender. Under these conditions, percentage willing to accept the proposal

rose to 70 percent of all victims. Those were then asked whether they would want

the offender to be prosecuted and punished as well, 20 percent replied in affirmative.

36 C Chinhin and R Griffith: "Resolving Conflict by Mediation" New Law Journal (1980) pp. 6-8.

119

Excluding these from the total, 55 percent of the victims saw some form of

reparation/mediation as a sufficient and appropriate means to resolve their particular

crime. Such figures are indeed encouraging to those concerned with extending the

opportunities for reparation and mediation.

However, due to extensive focusing on non-violent crimes, it is pertinent to

ask how far the views of victims vary for different offences. If a distinction between

household and personal crimes is made, not surprisingly victims of the former are

more likely to be willing to accept reparation. Not less than 30 percent of the victims

of personal crime responded favourably and encouraged for developing such

schemes.

It might also be expected that responses would vary according to whether or

not crimes become known to police. However, differences were not excessive. For

household crimes, 60 percent of victims of crimes known to the police were in

favour, compared with 55 percent of other victims. For personal crimes, the figures

were respectively 35 and 30 percent. Although reasons for these responses were not

elicited, it thus seems that the proportion hostile to reparation because of its

inadequacy in roughly balanced by the proportion who feels that official action of

any some is unnecessary.

Thus taking first victim characteristics, it seemed that for personal crimes,

attitudes towards mediation varied only slightly for different sub categories of

victim, the most notable difference being by income level with high-income groups

least receptive to the idea. For household crime there was more variation, with

separated/divorced victims, males and middle income earners most favourably

disposed, widowed, female and elderly.

Turning to offender characteristics, rather large differences emerged.

Personal crimes involving one offender, females, and offenders aged 26 or more

were least likely to be considered suitable for reparation, crimes involving four or

more offenders and males were most likely to be seen as suitable. Interestingly,

victims of personal crimes by school-aged offenders were relatively likely to favour

reparation, but not when only reported crimes were considered. Victims of

household crimes committed by one offender were also less inclined to favour

120

reparation than were victims of four or more offenders. However, for reported

crimes, victims were most likely to favour reparation where the offender was female

or aged 26 or more. This somewhat confusing pattern is at least partially explained if

we consider variations according to the victim-offender relationship.

Consideration of variations according to victim or offender characteristics, or

the victim-offender relationship, thus reveals a number of differences but no clear

cut patterns. To some extent, this reflects the complexity of the crime situation. It

suggests that a wide variety of incidents are possibly amenable to reparation,

depending on the particular mix of circumstances. There is certainly no evidence

that reparation initiatives should focus exclusively on young offenders, impersonal

crime or crimes by strangers, although there is an indication that personal crime

between neighbours may present a challenge to neighbourhood mediation initiatives.

However, by changing our criminal justice system to a more victim oriented

one we may merely produce a system more rounded in its concern but not less

adversarial than at present. Or we may, in doing so, alter victim's attitudes and

expectation so that, by a gradual process, a different model emerges, one perphaps

closer to a mediated consensus model of dispute regulation

Attitudes are, however, not absolute. They depend upon expectations and

upon knowledge of the system. So, if the system changes, so will the attitudes and

expectations of victims. At the moment, the similarity of victim attitudes over

offences and in different system is extraordinary. It tends to suggest similar roles for

victims and a similar perception of victims in different countries and in different

systems.

Such a development would produce a very different form of criminal justice

system, which would have implications both for the offender and for the

professional representatives involved.

The changes in the criminal justice system necessary to approximate more

closely to the present expectations of victims are not major or structural ones. They

are primarily attitudinal. The victim's problem in participating in the criminal justice

system may be seen as due to his lack of status, or even accepted role within that

system. If the victim is a non- person in the eyes of the professional participants, at

121

least as far as the day-to-day functioning of the system is concerned, then he will not

be informed or consulted as a matter of course. It is only if the victim is seen as

being an important partner in the criminal justice system that the flow of information

will become automatically two-way and consultation will occur.

Reparation and mediation are, however, of recent origin and have as yet had

little impact on the vast majority of crime victims. They do nevertheless, reflect one

aspect of growth within the voluntary sector, where some schemes are run by

voluntary organizations or use volunteers.

So, we can say reparation and mediation initiatives have a distinctly different

pedigree. While partly inspired by a desire to reduce the prison population, they

more fully reflect a willingness to balance the interest of offenders and victims,

possibly, but not necessarily, as an alternative to penal measures. To this extent they

provide advantages to victims, by allowing greater victim involvement in the

process, and to offenders, who may receive less severe sentences.

4.4 RIGHTS OF VICTIMS IN THE INDIAN

CRIMINAL JUSTICE SYSTEM

4.4.1 INTRODUCTION

Crime is a phenomenon which cannot be divorced from social context. In

India, though the criminal justice system is elaborate and expensive, it aims almost

entirely to protect the accused but not the accuser/victim.

The adoption by the General Assembly of the United Nations at its 96th

plenary on 29 November 1985 of the Declaration of Basic Principles of Justice for

Victims of Crime and Abuse of Power constituted an important recognition of the

need to set norms and minimum standards in international law for the protection of

victims of crime. The U.N. declaration recognized four major components of the

rights of victims of crime. First, access to justice and fair treatment, second,

restitution, third compensation and fourth assistance.

122

The U.N. declaration binds the member nation in providing various rights to

victims of crime in consonance with is Declaration of Basic Principles of Justice for

Victims of Crime and Abuse of Power. The legislation concerning victims rights, are

still insufficient and not is harmony with this declaration. However, the provisions

enshrined in Indian Judicial System are supplemented by judicial decisions which

take form of laws.

The various provisions of Indian Legal system are a step in the direction of

upliftment of victim rights.

4.4.2 RIGHTS AND PROTECTION UNDER CRIMINAL

PROCEDURE CODE, 1973

(a) Definition of 'Victim' under Section 2(w)(a) : 'Victim' means a person who

has suffered any loss or injury caused by any reason of the act or ommission

for which the accused person has been charged and the expression, 'Victim'

includes his or her guardian or heir; (as inserted by the code of criminal

procedure (Amendment) Act, 2008, section 2)

(b) Protection under Section 160 : The position of the victims who happen to

be women or children has no merited the attention it deserves in the

procedural status. Section 160 of Criminal Procedure Code provides that "no

male person under the age of 15 years on women shall be required to attend

any place other than the place in which such male person or woman resides."

Though, this provision does not apply to a woman or a child who is picked

up as a suspect, the Supreme Court emphasized the mandatory nature of this

requirement in Nandini Satpathy Vs. P.L. Dani.37

(c) Protection and Right under Section 439 : The victim has a say in the

grant of bail to an accused. Section 439 (2) of Criminal Procedure Code, as

interpreted by the courts, recognizes the right of the complainant or any

37 Nandini Satpathy Vs. P.L. Dani (1978) SCC 424. In Christian Community Welfare Council of

India Vs. Government of Maharashtra (1996), a rule evolved that an arrest of woman should not be

detained beyond sunset.

123

aggrieved party to move the High Court or the Court of Sessions for

cancellation of a bail granted to the accused.38

A clause report by the

prosecution cannot be accepted by the court without hearing the informant.39

In S.A. Karim Vs. State of Karnataka40

, the Supreme Court acted on the plea

of he father of a policeman who was killed by a dreaded forest brigand and

set aside the order of the trial judge that had allowed the prayer of the state

for withdrawal of prosecution.41

(d) Sec 372 as amended by Code of Criminal Procedure (Amendment) Act,

2008 (5 of 2009) Sec. 29 : No appeal shall lie from any judgement or order

of a criminal court except as provided for by this code or by any other law

for the time being in force.

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 imposing inadequate compensation and such appeal shall lie

to court to which an appeal ordinarily lies against the order or conviction of

such court.

(e) Section 301 (2) : Section 301 (2) of Criminal Procedure Code mandates that

a lawyer of the private party shall act under the directions of the Public

Prosecutor ... and may, with the permission of the court, submit written

arguments after the evidence is closed in the case. However, there is no

scope under the Criminal Procedure Code for the victim or informant of her

lawyer to directly participate in the trial.

(f) Section 162 : The section 162 of Criminal Procedure Code offer protection

against intimidation by the police. It makes the statement made by a witness

to the police during the course of investigation inadmissible in evidence

consistent with the statutory bar under Section 25 of Evidence Act, 1872.

38 Puran Vs. Rambilas (2001) 6 SCC 388 and R. Rathinam Vs. State (2000) 2 SCC 391 Union Public

Service Commission Vs. S. Papiah (1997) 7 SCC 614 39 Union Public Service Commission Vs. S. Papiah (1997) 7 SCC 710 40 S.A. Karim Vs. State of Karnataka : (2000) 8 SCC 710 41 P. Ramachandra Rao Vs. Stte of Karnataka (2000) 4 SCC 578 : The Supreme Court noted the

concern expressed for the plight of the victims of crime who, if left without remedy might "resort to

taking revenge by unlawful means resulting in further increase in crime and criminals.

124

(g) Section 163 : Section 163 of Criminal Procedure Code seeks to protect a

witness against inducement threat or promise offered or made by police

officer or other person in authority.

(h) Section 171 : Section 171 of Criminal Procedure Code mandates that "no

complainant or witness on his way to any court shall be required to

accompany a police officer, or shall be subject to unnecessary restraint or

inconvenience.

(i) Section 284 : Section 284 of Criminal Procedure Code provides that a

witness can be directed by the court to be examined on commission thus

dispensing with the need for such witness to attend the trial. In addition,

where the court finds that the key prosecution witness have turned hostile it

can under section 309 of Criminal Procedure Code and for reasons recorded,

postpone the trial.

(j) Section 311 : Under section 311 of Criminal Procedure Code, a witness can

be recalled and re-examined if "his evidence appears it to be essential to the

just decision of the case." However, these provisions are seldom used even

when court finds that the witness is under obvious threat and intimidation.

(k) Section 154 (2) : Section 154 (2) of Criminal Procedure Code entitles the

victim/informant to a copy of FIR "forthwith, free of cost."

(l) Section 154 (3) : Section 154 (3) of Criminal Procedure Code provides that

if officer in charge of a police station refuses to act upon such information,

the victim can write to the Superintended of Police who is then expected to

direct investigation into the complaint.

(m) Section 190 : Section 190 of Criminal Procedure Code states that if above

mechanism of filing complaint fails, the victim can give a complaint to a

Magistrate, who will in turn examine the complainant on oath and enquire

into the case or direct investigation by the police before taking cognizance.

(n) Section 200, 202 : The failure by a public servant to willfully neglect to act

upon the complaint of member of the Scheduled Caste and Tribes is

punishable offence under these sections of Criminal Procedure Code.

125

(o) Section 406 : Under Section 406 of Criminal Procedure Code the victim or

the complainant can petition the Supreme Court for transfer of trial for

ensuring free trial of the case.42

The Criminal Procedure Code still runs short in providing the victims their

due. On many stand the code has been proved to be insufficient in its provisions to

fulfill the victim needs.

The perception of that suffering segment of humanity is that the Criminal

Justice System is callously impersonal, its components are at sixes and sevens, it has

no functional accountability and is caters only to its own minions. This is an

indictment of the system by the common man.

What happens to the victim if he survives an offence and reports his

victimisation to the Police? His misery restarts. He is faced among other things with

insults at the hands of the people including the police officers and lawyers and loss

of earnings, and if the victim happens to be a woman, her lot is much worse.

4.4.3 RIGHTS AND PROTECTION UNDER OTHER

LEGISLATIONS

(a) Section 4 of SC and ST (Prevention of Atrocities) Act, 1989: The section

provides that in case of failure by a public servant to willfully neglect to act

upon the complaint of member of the Scheduled Caste and Tribes is

punishable offence under this section. Under this act, compensation to

victims is mandatory, besides several other reliefs depending on the type of

atrocity. The victims are entitled to receive monetary compensation ranging

from Rs. 25,000 to Rs. 200,000 depending upon the gravity of the offence.

(b) Section 9 of Evidence Act 1872 : After filing complainant and taking

cognizance of the case by the Magistrate, the victim thereafter does not

participate in the investigation except by being called to confirm the identity

42 G.X. Francis Vs Banke Bihari Singh : The Supreme Court transferred the trial of a criminal

defamation case filed against Christians by a non-Christian from a court at Madhya Pradesh, where

the atmosphere was palpably hostile, to one in the neigbouring state of Orissa.

126

of the accused or the material objects, if any, recovered during the course of

investigation.

(c) Section 114A Evidence Act 1872 : The section raises a presumption as to

the absence of consent where the woman raped says in her evidence before

the court that she did not consent. Recently some token amendments have

been made recognizing the need for preserving the dignity of the victim

Section 155(4), which permitted the impeachment of the credibility of a

prosecutrix by reference to her general “immoral character”, now stands

repealed.

(d) Section 228A Evidence Act 1872 : The section prohibits the disclosure of

the identity of the victim in any publication concerning the offence. There is

yet no provision in the law mandating ‘in-camera’ trials particularly when

the victim is child/women.

(e) Section 12(1) and 13(1) of the Legal Services Authorities Act, 1987 :

Though there is no provision in the Criminal Procedure Code for providing

legal aid to the victim of crime, the section entitles every person “who has to

file or defend a case” to legal services. A victim of crime has a right to legal

assistance at every stage of the case subject to the fulfillment of the means

test and the ‘prima facie case’ criteria.43

(f) Section 195-A of Indian Penal Code : A new insertion in the section of

Indian Penal Code, which makes the threatening or inducing of any person to

give false evidence a cognizable and non-bailable offence punishable with

imprisonment for seven company years or fine or both. This response of

government is not only ad hoc but also inadequate as it fails to address the

whole range of issues raised by victims of crime.

There are also significant developments in the form of new laws to

promote the cause of victims and to mitigate the sufferings of potential

victims of vulnerable sections of population such as women, children and

43 Under section 12(1) (b) every victim of trafficking in human beings or beggar; under section

12(1)(e) every person under circumstances of undeserved want such as a “victim of mass disaster,

ethnic violence, caste atrocity..” is entitled to free legal services irrespective of the means test but

subject to the prima facie case test.

127

elders. The recent enactments passed by the Parliament have a significant

bearing on preventing victimization and giving relief to victims.

(g) The Protection of Women from Domestic Violence Act, 2005 : “The

Protection of Women from Domestic Act, 2005” is a major achievement of

the women’s movement towards protection of domestic violence victims

after a struggle of 16 years. This Act aims to provide for more effective

protection of the rights of women guaranteed under the Constitution. The

definition of domestic violence is wide enough to include physical, sexual,

verbal and emotional abuse. The unique feature of the Act is that it prohibits

to use or enjoy by virtue of the domestic relationship, including access to the

shared household”. A police officer, protection officer or a magistrate who

has received a complaint of domestic violence has a mandatory duty to

inform the victim of her right to obtain a protection order or an order of

monetary relief, a custody order, a residence order, a compensation order or

more than one such order and the availability of the services of service

providers, protection officers, and the right to free legal services under this

Act. A violation of the protection order by the respondent is an offence

which can result in imprisonment for one year or a fine upto Rs. 20,000 or

both. If the protection officer refuses to discharge his duties, he shall be

punished with imprisonment for one year or with a fine of Rs. 20,000 rupees

or with both.

(h) The Maintenance and Welfare of Parents and Senior Citizens Act, 2007:

This is also an innovative law aiming to protect elders and prevent elder

abuse and victimization, which is a growing problem in many countries,

including India. Under this law, an obligation is created of the children or

adult legal heirs to maintain their parents, or senior citizens above the age of

60 years who are unable to maintain themselves out of their own earnings, to

enable them to lead a normal life. If children or legal heirs neglect or refuse

to maintain the senior citizen, the Tribunal can pass an order asking the

children or legal heirs to make a monthly allowance for their maintenance.

128

(i) Prevention of Child Abuse and Victim Protection : Empowering the child

is the road to prevention from abuse and victimization. To empower the

child, education is the tool. Therefore, primary education for children has

been made a fundamental right as per the decision of the Supreme Court of

India in Unnikrishnan’s case (1993). Article 21-A of the Constitution state

that “The State shall provide free and compulsory education to all children of

the age 6-14 years in such manner as the State may by law determine.” The

proposal also will have a positive impact on eradication of child labour. The

spread of elementary education through constitutional measures would have

a good impact on other social indicators like population growth, health and

women’s development as well as enhancement of productivity of the

economy and reduction in unemployment.

(j) The National Commission for Protection of Child Right (NCPCR) : This

Commission was set up in March 2007 and its mandate is to ensure that all

Laws, Policies, Programmes, and Administrative Mechanisms are in

consonance with the Child Rights perspective as enshrined in the

Constitution of India and also the UN Convention on the Rights of the Child

(see at Government of India, 2009). India ratified the United Nations

Convention on the Rights of the Child in 1992 and this Act was passed as

one of the necessary steps to protect the rights of children in the country. The

National Commission for Protection of Child Rights has been taking up

various issues brought forth in the area of child abuse. After inquiry, the

National Commission can recommend initiation of proceedings for

prosecution or any other action it may deem fit.

4.5 RESTITUTION AND COMPENSATION : INDIAN

AND GLOBAL APPROACH

4.5.1 INTRODUCTION

The traditional criminal sanctions have been unsuccessful in furthering the

aims of criminal justice. Incarcerating the offenders in our overcrowded and

129

expensive prison fails to rehabilitate the imprisoned or protect the society. The

public has become frustrated with the system of “assembly line justice”, through

which convicted criminals are placed on parole or probation and are left free to

commit further crimes,44

which diminishes the deterrent effect of criminal sanction.

In search of new sentencing options, legislatures and commissions have increasingly

turned to restitution as a constructive alternative to the severity of imprisonment and

the leniency of probation. They suggest that “restitutive justice” should be the

principal objective of criminal law, requiring the offender to repay the victim from

his own resources of from wages to be earned by the offender in the prison.

Amongst various reasons and rationale given for victim compensation main

is theory of the state.45 The state is a complex of rulers and ruled, politically

conceived, territorially organised, seeking by the conferment of powers on the

rulers, the effective maximization of the individual and social welfare of the ruled.

The state achieves its purpose through enactment and promulgation of law and it

enforces obedience to the laws by the exercise of power. Power is the capacity to

produce the intended effect. If the intended effect can not be produced in respect of

any law, the state has to assume responsibility for the loss, pain or damage caused to

any law-abiding citizen by someone's disobedience of the law. The assumption of

power by the state means automatic deprivation of the citizen of his right to private

vengeance or personal retributive action. Such deprivation is sine qua non of modern

society's civilized existence.

Another functional justification for victim compensation is the “welfare”

theory arising from the assumption that the government exists and functions for the

people.46 This approach holds that just as the state has a humanitarian duty to the

poor, the sick, the unemployed, the underprivileged, the disabled veteran and so on,

it has a duty towards the victim of crime also. There is hardly any state which admits

of such victim compensation legislation orientation; yet such provisions as financial

need requirements or minimum loss requirements are clearly based on the theory of

welfare state.

44 Abner J. Mikva: Victimless Justice, Journal of Criminal and Criminology, (1980) pp.189-190. 45 V.N. Rajan: Victimology in India, Allied Publishers, New Delhi (1981) p.6-7 46 ibid

130

Related to the welfare theory is the “mercy of the government” theory.47

Under this theory, it is contended that state has the power to act mercifully with

certain unfortunate individuals (victim) by means of legislative grace compensation

grant etc. The rationale is not of general nature and is inclusive in the welfare theory.

Yet another justification is “shared risk” argument in favour of victim compensation.

In this the government is viewed as an employer who bears the cost of the risk

service he provides to the consumers in the price of the product. Thus each

consumer contributes towards the payments made to those few individuals who will

be compensated for damages. It will be a kind of insurance.

From victim's point of view, restitution is beneficial because it helps to make

whole the victim's crime related loss. As a criminal court sanction, the victim's right

to sue in tort is not impaired. Further, it restitution is adequate; the victim may be

spared with the time and expenses of bringing a civil suit for compensation, as well

as the emotional strain of enduring a second trial.

The word reparation, restitution, composition and compensation are often

used by writers interchangeably, in criminal-victim relationship, though they

represent different view points. All of them allude procedures for restoring the

victim to his pre-conditions. They differ basically in legal philosophy and very

importantly in administration. There is a confusion of what was basically a civil tort

approach (composition) with a punitive corrective measure (offender restitution to

victim) and of both with the doctrine of state responsibility for protection of its

citizens. And when such protection proved inadequate (compensation), it

characterizes discussion.48

Reparation is obtained from the offender by the victim of the crime.

Restitution concerns with reparation of the victim's loss or better restoration of his

position and the rights that are damages or destroyed by the offenders. It is an

indication of the responsibility of the offender. It is penal in character and thus

represents a correctional goal in the criminal case.

47 ibid 48 Donald E.J. MacNamar and Don John Sullivan: "Making the Crime Victim's Whole: Composition,

Restitution, Compensation” in Terrence P. Thorenbarry and Edward, Images of Crime: Offender and

Victim, Prager, N.Y. (1974), p.79

131

Compensation, in the criminal victim relationship is concerned with the

counter balancing of the victim's loss that results from criminal act. It means making

amend the harm caused to the victim. It indicates the responsibility of the state and

claims state responsibility.

4.5.2 RESTITUTION

Far from being a novel approach to sentencing, restitution has been

employed as a punitive sanction throughout history. In ancient societies, before the

conceptual separation of civil and criminal law, it was the standard practice to

require reimbursing the victim or his family for any loss caused by the offence.49

The primary purpose of such restitution was not to compensate the victim, but to

protect the offender from violent retaliation by the victim or the community.50 It was

a means by which the offender could buy back peace he has broken. As the state

gradually established a monopoly over the institution of punishment and a division

between civil and criminal law emerged, the victim's right to compensation was

incorporated into civil law. Although this development led to decline in the use of

restitution as a form of punishment, restitution continued to be available on a limited

basis. By providing for restitution in the penal sections of state codes and

authorizing it as a sentencing option in addition to fines or imprisonment or a

condition on probation.51

Restitution can be defined as a sanction imposed by the court on a person

convicted of a crime which requires the convicted person to make a monetary

payment to the victims or some times, to donate labour for the benefit of the

community.52 It is not certainly a panacea, the remedy of court-ordered restitution is

receiving increased attention day by day, not only for its potential to make victim

49 The Code of Hammurabi, Ancient Indian, English, Germanic Law and Roman Law contained

different scale of Compensation for Victims of Crime. 50 Ibid 51 A.T. Herlard, “Monetary Remedies for the Victims of Crime: Assessing the Role of the Criminal

Courts” UCLA Law Review, Vol. 30 (1982) pp.52-128 52 New York State Compensation Board, The Victim and the Criminal Justice System - A Report to

the Government and Legislature on the State of Rights, Needs and Interest of Crime, (1982) pp. 14-

18.

132

whole and serve a correctional function, but also for its potential as a cost effective

alternative to more frequent and more lengthy incarceration of criminal offender.

Although restitution can be an effective criminal sanction, it is not an

appropriate for all crimes. When the victim's loss is difficult to quantify, as in case

of murder or rape, restitution may be a less effective and less easily administered

penalty that it is in cases of property crime. Moreover, restitution alone is unlikely to

be a sufficiently severe sanction for cases involving wealthy defendants or violent

crimes, although it can still be effectively utilized in such cases if combined with

other criminal penalties, so as to fulfill the goals of criminal justice system.

The assertion that restitution is inappropriate as a criminal sentence is

regarded by some as unconvincing because it reliefs on too rigid and dichotomy

between criminal and civil law. The characteristics and underlying objectives of

these two system are not markedly distinct. On the contrary, they overlap to a

significant extent.53

Thus, the benefits that restitution offers victims do not

automatically make it inappropriate as a criminal sanction.

The sanctions that seem wholly punitive may fulfill compensatory goals; it is

by providing satisfaction to victims that the criminal law seeks to prevent private

revenge. “The criminal punishment proportioned to the harm, is emotionally felt as

“compensation” for the public damage done. The compensatory aspect of restitution

is a logical expansion of the “symbolic” compensation already offered by criminal

punishment.54

Although the legal system is not strictly separated into two spheres, civil and

criminal law differ in the relative emphasis the place on their various common goals.

Despite its value as a deterrent, the civil law is primarily designed to compensate

victims of wrongful conduct. In contrast, the criminal law’s main goals are

rehabilitation, deterrence and retribution, consequently criminal law focuses on

punishing and reforming persons who have committed morally culpable act.

Although restitution may appear to share with the civil law, the aim of

compensation, on a close examination reveals that its principal value is not its ability

53 J. Austin : Lecturers in Jurisprudence, R. Campbell, London, (1945) p.53. 54 Stephen Schafer: “Restitution to the Victims of Crime – An Old Correctional Aim Modernized”,

Minnesota Law Review, Vol. 50 (1965) p.243.

133

to make victims whole, but rather is utility as a corrective device. Because an award

of restitution involves payment by the offender to the victim rather than to state; it

provides the victim with a financial incentive to cooperate in prosecution and make

clear to the offender whom he has injured not a disembodied state but the real

individual.

Like civil law, criminal law does not restrict itself to any one set of goals.

Criminal law is concerned not only with societal harm, but also with harm to

victims. Because crime injuries individual’s interest as well as public right, the

enforcement of the criminal law protect not only society as a whole, but also its

individual members. In addition, the criminal law defines each person’s minimum

responsibilities to fellow members of society. Thus, the fact that restitution benefits

individual victims and forces the offender to be responsible to his victim does not

make its inclusion in the criminal system inappropriate; rather, restitution

underscores the criminal law’s concern for victims of crime. Restitution not only

helps to make the victim “whole”, but also fixes the responsibility on the offender

for causing the loss or injury on the victim.

In practice as well as in theory, restitution orders unlike damage awards are

specifically geared towards achieving the objectives of the criminal justice system.

When determining the amount specified in a restitution order, most courts consider

not only the amount of the victim's loss but also the rehabilitative, deterrent and

retributive effects of the order. Restitution orders typically reflect judicial concern

with rehabilitation. A restitution order is a more effective deterrent than a civil

damage award because restitution must be paid personally by the offender.55

The rehabilitative value of restitution is recognized by judges who impose

restitution because of its impact on the offender and its promotion on correctional

aims, by legislatures that authorize restitution as a criminal sanction and by community

service programme that use restitution as a rehabilitative tool. Like fine, restitution can also

be an effective deterrent. Indeed, restitution may be more effective than a fine.

Restitution serves the retributive goals of punishment. It is constructed to fit the crime

and to emphasize the wrongfulness of the offence and defendant's moral responsibility.

55 Supra f.n. 51, p. 243

134

Restitution is viewed as the best way to the offender to realize the harm he

has done and to accept genuinely his responsibility by repairing it, while also

offering greater promise of rehabilitation than fine or imprisonment. For

offenders who can safely be released, a restitutive theory offers an alternative to

imprisonment by providing emotional and economic satisfaction to the victim,

vicarious satisfaction to family and friends and some degree of deterrence to the

offenders.

To sum up, restitution is an appropriate and effective criminal sanction that

promotes the criminal law's goals of rehabilitation, deterrence and retribution.

Moreover, only within the criminal justice system, restitution can foster these

aims. Although victims may sue offenders after the State has imposed criminal

sanctions other than restitution, society, as well as the victim has an interest at stake

when a crime is committed.56

Society as a whole may benefit from the correctional-

effects of requiring the offender to pay money to the victim. But because the victim

may not find it worthwhile to pursue a civil action, the public benefits of restitution

may be lost if enforcement is left to the victim.

4.5.3 COMPENSATION

The recent concern for the plight of the crime victim is largely attributed to

the writing of Margery Fry;57

a highly influential English penal reformer in London

proposed that victim should no longer be made to depend upon civil suits for loss

inflicted upon them by crimes. Her argument was that government compensation to

the victims of violence was a logical extension of an enlightened social policy which

already provided transfer payments for the majority of social dislocation occasioned

by-modern life in industrial society. In our modern system of collective

responsibility for sickness and injury, we have evolved machinery for assuring

compensation which could be extended to injuries criminally caused; affording

equal benefits to the man who falls from a ladder at work and the man whose enemy

56 "Restitution and Criminal Law" (Notes and Legislation), Columbia Law Review, Vol. 39, (1939) p.

485 57 Margery Fry : The Observer (London) July 1957 at p. 8

135

pushed the ladder from under him at home. The state which forbids one going armed

in self defence can not disown all responsibility for its occasional failure to protect.

The responsibility for safety to the government when a citizen suffers the misfortune

of victimisation by the criminal act, the government failed to protect. The least the

government ought to do, when its protection fails to provide some type of insurance

policy. It is unjust and inequitable to make a small minority of unfortunate citizen to

bear the cost.

Another aspect which needs consideration is that the accused person in most

cases is not in a sound financial position to pay necessary compensation amount to

the victim of crime. In a society like ours one important consideration may well be

that a heavy crippling amount of compensation on an accused who is also the

bread-winner may operate harshly on innocent members of his family. In the laissez

faire state and much more so during the time of colonial rule the state had no

obligation in matter. But in a welfare state, the position is radically different. The

state has the obligation to ensure that the citizens live without being victim of

crime.

There has been great difficulty in maintaining the tempo for restitution. It is

because; it often proves to be an empty gesture as most offenders having no money

and poor job prospects. Restitution hence only offers limited possibility. Therefore,

the emphasis shifted to a species of social insurance administrated by a public

agency that made payment directly to the victim. These payments do not depend, as

in restitution, on the offender being caught and convicted. Instead, they are based on

the assumption that crime is so perversive a condition and civil remedy against

offender so illusory that the burden of crime must be shared by the entire society.

Therefore, there is a growing demand for a legislation to monetary indemnification

to victims of crime.

One of the rationales which have been advanced in support of proposal for

legislation involving compensation by the state to the victim is that the state has a

duty to protect its citizens from crime and if it fails to do so it incur an obligation to

indemnify those who are victimized. Society has an obligation, when protection of

136

society is not sufficient to prevent a person from being victimized. Society has then

an obligation to compensate the victim for that failure of protection.

ln fact, society is alone able to assist the victims of crime. The remedies like civil

suit or insurance have little usefulness where the accused is very poor and the

victim is too poor to pay insurance premiums or hire a law to prosecute the suit for

compensation. It is only realistic that society, through a programme of public

compensation, addresses itself explicitly to costs which it bears in any case. A

programme of public compensation would also be practical in its impact on rising

crime rates by requiring victims to report crimes promptly as a prerequisite to

compensation; such a programme could help the law enforcement authorities

apprehend criminals.58

Compensation is especially appropriate in light of the responsibility which

society must bear for the crime itself: Crime is after all, a sociological and economic

problem as well as a problem of individual criminality. There has been ample

demonstration of the interrelation of crime and poverty. The economically weak and

deprived produce bulk of our prison population as well as victims of crime.

Equality and social justice has been the signature tune of our constitution.

The constitution of India guarantees equality to all under article 14 and 41. Article

14 provides equality amongst the all citizen of the country in every sphere and walks

while Article 41 provides that "The state shall, within limits of its economic capacity

and development, make effective provision for securing the right to work, to

education, and public assistance in case of unemployment, old age, sickness

and disablement and in case of under served wants." In that the victims of crime are

under-served because of the states failure to give them protection. In many cases of

offences against person the victim snuffers from physical and psychological wounds

which lead sometimes to disablement.

The state's duty to rehabilitate the victim of crime cannot be put any lower

than its responsibility to rehabilitate the criminal. In fact, victim's claim stands on

stronger ground for, the state having itself assumed the responsibility to maintain

law and order, it has also implied responsibility to maintain reimburse any loss

58 Arthur J. Goldberg : Southern California Law Review, Vol. 43 : 1, p. 2

137

suffered by its citizen due to the failure of the law enforcing process. As rightly

observed by Goldberg, former judge of U.S. Supreme Court, "the victim of a

robbery or an assault has been denied the protection of law in a very real sense, and

society should assume some responsibility for making him whole.59

As an alternative to the compensation to be paid by the victim, the state

should come forward to provide compensation to the victim of crime. In fact, such

compensation may be paid by the criminal court even when the standard of proof of

crime does not reach the required level but the court is left in no doubt about the

victim's condition and it being the result of the act of accused. Alternatively a

Compensation board may be constituted with such fund to assess and ascertain the

loss or injury of the victim and award compensation. The duty of the state to

constitute such a fund is based on the very valid arguments that state is under an

obligation to protect its citizen from the criminal acts. So, it stands to reason that the

state cannot profit by its default.

The radical notion of compensation by offender to the victim can be traced in

the work of Margery Fry. She felt that such a system would have benefits for both

victims and offenders. A similar conception was also shared by Stephen Schafer

(1960). In the absence of an express legislation, the courts were not permitted to

sentence a compensating order in its own right which burdened offenders. After

passing of the requisite act, for an example in England, Criminal Justice Act 1982

was enacted. This gave the court express power to pass a sentence of compensating

orders in its own right. In India there is no express legislation of such nature to

authorized courts for passing of such orders. Through under limited discretion, the

court can pass the judgement making the offender obliged to pay compensation to

the victims of crime. In case the offender had not enough means to pay both fine and

a compensation order, the legislation ought to give compensation order priority.

Other commentators take the view that compensation is an appropriate aim

for the criminal justice system. Compensation may be seen as part of punishment to

be meted out to the offender or as merely one aim among many others for the

59 Goldberg, Justice : Equality and Government Action, 39 NYU rev. 224 (1974), Prem Shankar

Varshne : Compensation to the Victim of Crime & Criminal Law by S.N. Gupta, Commercial

Publication, Delhi (1982), p. 62.

138

sentencer to take into account. In the latter case, the sentencer is required to consider

the needs of the victim as well as those of society or the offender. It has also been

seen as having a rehabilitative effect on the offender.

There has been disagreement among legal commentators as to the proper role

of compensation orders since their introduction into the criminal justice system.

Some commentators have stressed the civil nature of compensation. Those involved

in the prosecution process do not necessarily see it as their job to pursue applications

for compensation on behalf of victims whilst this tension exists. In addition the court

in taking into account the means of the offender may choose an alternative which

seldom includes a compensation order. The exponent of the civil compensation

suggests that its position in the system is merely to enable the victim to obtain

reparation from the offender more swiftly, more easily and with less potential cost

than he could thorough the civil courts. Such a position can produce apparent

tension between the supposed demands of the victim for civil damages and the penal

nature of the award, particularly in respect to offenders. This tension has been shown

in seeming inconsistencies in the offences for which the victim may obtain

reparation in the civil and criminal courts. In the case of difficulties in adjusting

compensation to the offenders means and in the problem experienced by the

criminal courts when dealing with cases where the sum of compensation or the

liability of the offenders is in dispute.

The list of theoretical and practical problems might lead to the expectation

that compensation by the offenders has been a relatively unappreciated measure, one

which is the subject of worried and negative comment by Government and by

general public. There appears almost to be unanimity in the desire for compensation

from offenders. The views of the victims about compensating orders are similar.

It is however seen that compensation orders by the courts are made in very

few numbers. The raison d'etre is of course obvious. The other alternative is

considered remote in practical implication in terms of legislative sanction and

judicial activism.

The contradiction that exists at present between the state's responsibility to

compensate victim and its inability to do so because of meager resources can

139

perhaps be resolved if personal reparation by the offender to the victim is restored as

one of the aims of penal law. Referring to this, Gerhard O.W. Mueller, quoted

earlier, question, "In short, is it possible as part of our correctional system, or as a

rehabilitative aim, to require a convict to engage in useful labour, perhaps rated at

the marked value of his services, payment for which is then transmitted to the victim

of his crime as compensation?"60

This will also result in lesser number of people

having to be accommodated in jails, in the considerable saving in prison costs,

besides making a substantial number of Indian adults available for constructive work

outside. This indeed is a suggestion which calls for thoughtful consideration. As

Von Hentig, the "discoverer" of the victim rightly pointed out, "in many cases

payment to the injured party will have a stronger inner punishment value than the

payment of a sum to the neutral state."61

The concept termed as "Correctional

Restitution" is intended to be built into the various penal law or sections of the Penal

Code, and, as such, forms part of the sentence that is imposed on the offender.

4.5.4 INDIAN SCENARIO

The right of a victim of crime to restitution has not yet merited statutory

recognition. In this area, the constitutional courts have been inclined to examine the

plea of victims for redressal of the losses suffered during violent incidents including

riots and caste clashes. In a case62

, the Andhra Pradesh High Court declined to

accept the prayer for compensation to the loss of life, injury, destruction and loss of

property as a result of violence that followed the murder of a sitting member of the

legislative assembly. The court explained that “it is only when the officers of the

state do any act positively or fail to act as contemplated under law leading to

culpable inaction, that the state is liable to pay damages. There should be a direct

nexus for the damage suffered on account of state action and if that is absent, Article

60 Gerhard O.W. Mueller, Professor of Law, New York University, "Compensation for Victims of

Crime : Though before Action" Published in Criminological Controversies, p. 321. 61 Von Hentig : "Punishment, its Origin Purpose and Psychology", p. 217 62 Sri Lakshmi Agencies vs. Government of Andhra Pradesh : (1994) 1 Andh LT 341.

140

21 of the Indian Constitution is totally inapplicable.” This is an evolving area in

which the courts are seen to be treading cautiously.

The role of the victim of a crime in our criminal justice system, which

follows the common law colonial tradition, is restricted to that of a witness in the

prosecution of an offence. The reorienting of the criminal justice system to address

the needs of a victim of crime need not and perhaps should not be exclusive of the

need to enforce and protect the rights of suspects as well as the rights of the accused.

Although the rights of suspects as well as the rights of the accused. Although the

Malimath Committee has recommended that “the victim has a right to be

represented by an advocate of his choice; provided that an advocate shall be

provided at the cost of the state if the victim is not in a position to afford a lawyer”,

this fails to acknowledge that the present state and implementation of the statutory

provisions concerning free legal aid in the criminal justice system leaves much to be

desired. The reform of the criminal justice system as a whole will have to be

simultaneous with the reform of the legal aid system before a victim of crime can be

guaranteed an effective right of representation in a criminal trial.

A. CRIMINAL PROCEDURE CODE AND COMPENSATION

The provisions relating to compensation to the victim of crime is contained

in Section 357 of the Criminal Procedure Code of 1973 and Section 5 of the

Probation of Offenders Act of 1959 and some other statutes.63

Section 357 of the

Criminal Procedure Code reads as follows :

“Order to pay compensation – (1) when a court imposes a sentence of fine or

a sentence (including a sentence of death) of which fine forms a part, the court may,

when passing judgement, order the whole or any part of the fine recovered to be

applied –

(a) In defraying the expenses properly incurred in the prosecution;

63 Section 22 of the Cattle Trespass Act of 1872, Section 42 and 76 of the Forest Act of 1972, and

Section 1 of the Public Gambling Act of 1967.

141

(b) In the payment to any person of compensation for any loss or injury caused

by the offence, when compensation is, in the opinion of the court recoverable

by such person in Civil Court;

(c) When any person is convicted of any offence for having caused death or

having abetted the commission of such an offence, in paying compensation

to the persons who are, under the Fatal Accident Act 1855, entitled to

recover damages from the person sentenced for the loss resulting to them

from such death;

(d) When any person is convicted of any offence which includes theft, criminal

misappropriation, criminal breach of trust or cheating, or of having

dishonestly received or retained, or of voluntarily assisted in disposing of,

stolen property knowing or having reason to believe the same to be stolen, in

compensating any bonafide purchaser of such property restored to the

possession of the person entitled thereto.

(2) If the fine when is imposed in a case which is subject to appeal, no such

payment shall be made before the period allowed for presenting the appeal

has elapsed, or if an appeal be presented, before the decision of the appeal.

(3) When a court imposes a sentence, of which fine does not form a part, the

court may when passing judgement, order the accused person to pay, by way

of compensation, such amount as may be specified in the order to the person

who has suffered any loss or injury by reason of the act for which the

accused person has been so sentenced.

(4) An order under this section may be made by an appellate court or by the

High Court or Court of Sessions when exercising its power or revision.

(5) At the time of awarding compensation in any subsequent civil suit relating to

the same matter, the court shall take into account any sum paid or recovered

as compensation under this section.

B. PROBATION OF OFFENDERS ACT AND COMPENSATION

The Probation of Offenders Act empowers a trial court, in its discretion, to

release the offender after due admonition and on probation of good conduct in

142

certain offences.64

The Act also enables the court, directing release of an offender

under Sections 365

and 466

, in its discretion, to grant “reasonable compensation” to

any person for loss or injury caused to him by commission of offence and cost of the

proceedings. Sub-section (1) of Section 5 reads as follows :

Power of the court to require released offender to pay compensation and

costs – (1) The court directing the release of an offender under Section 3 or 4 may, if

it thinks fit, make at the same time a further order directing him to pay :

(a) such compensation as the court thinks reasonable for loss or injury caused to

any person by commission of the offence; and

(b) such costs of the proceedings as the court thinks reasonable.

The provision undoubtedly empowers the court, releasing an offender after

admonition or on probation of good conduct to grant compensation and cost in

appropriate castes. Phraseology of the section makes it amply clear that such a

power vests only with the court releasing an offender and is purely in its discretion.

Even an appellate court or High Court cannot interfere unless it is of the view that

such power has been exercised capriciously and unreasonably.67

64 Section 3 and 4 of the Probation of Offenders Act. 65 Power of the court to release certain offenders after admonition – when any person is found guilty

on having committed an offence punishable under Section 379 or Section 380 or Section 381 or

Section 420 of the Indian Penal Code or any offence punishable with imprisonment for not more than

two years, or with fine, or with both, under the Indian Penal Code or any other law, and no previous

conviction is proved against him and the court by which the person is found guilty is of opinion that,

having regard to the circumstances of the case including the nature of the offence and the character of

the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for

the time begin in force, the court may, instead of sentencing him to any punishment or releasing him

on probation of good conduct under Section 4 release him after admonition.

Explanation – For the purpose of this section, previous conviction against a person shall include

any previous order made against him under this section or Section 4. 66 Power of the court to release certain offender on probation of good conduct – when any person is

found guilty of having committed an offence not punishable with death or imprisonment for life and

the court by which the person is found guilty is of opinion that, having regard to the circumstances of

the case including the nature of the offence and character of the offender, it is expedient to release

him on probation of good conduct, then, notwithstanding anything contained in any other law for the

time being in force, the court may instead of sentencing him at once to any punishment, direct that he

be released on is entering into a bond, with or without sureties, to appear and receive sentence when

called upon during such period not exceeding three years, as the court may direct, and in the mean

time to keep peace and good behaviour.

Provided that the court shall not direct such release on an offender unless it is satisfied that the

offender or his surety, if any, has fixed place of abode or regular occupation in the place over which

the court exercise jurisdiction or in which the offender is likely to live during the period for which he

enters into the bond. 67 Rajeswari Prasad v. R.B. Gupta, AIR 1961, Pat. 19.

143

So we can say Section 357 of the Cr.P.C. and Section 5 of the P.O. Act

constitutes basically the law governing payment of compensation to the victims of

offences, empowers a court to order payment of compensation for any loss or injury

caused by the commission of the offence and costs of proceedings. But these

provisions leave it entirely to the discretion of the court to invoke them in respect of

grant of compensation to victims of an offence. These provisions, unlike the

provision of Western countries, neither give the victim a statutory right to be

compensated68

nor make it obligatory on the part of the court to record reason for

not awarding such compensation.69

C. OTHER LEGISLATIONS AND COMPENSATION

Where, under the Workmen's Compensation Act, 1923, the employer is

liable to pay compensation to his workers who are injured even where the injury was

no caused due to any negligence of the employer, the state should accept the

responsibility of compensating a citizen injured by another's criminal act even

though such criminal acts cannot be traced to any negligence or failure on the part of

the state.

Motor Vehicles Act, 1939 provided for creation of a Claim Tribunal in

respect of injuries as a result of motor accidents. The Claim Tribunals are

constituted under section 110 of Motor Vehicle Act, 1939 for the purpose of

adjudicating the claims for compensation in respect of accidents involving death or

bodily injury to persons arising out of the use of motor vehicles or damage to any

property of a third party. Section 110-B of the Act provides that Claims Tribunal

shall, after making an enquiry into the claim, determine the amount of compensation

which appears to it to be 'just'. Section 110-D provides appeal of High Courts from

the awards of Claim Tribunals.

68 E.g., the Russian Criminal Code of 1960 imposes a duty on offender to make amends for the harm

caused (Act 21, RSFSR Criminal Code 1960). the French Code of Criminal Procedure Code allows

the injured person, as a matter of right, to join the criminal proceedings to claim compensation. 69 E.g., Ss 104-107 of the Criminal Justice Act, 1988 of England, imposes an obligation on account to

record reasons if it having power to issue a compensation to do so.

144

A welfare State always makes, amends its laws to give smooth and speedy

relief to its subjects and keeping this object in view, The Motor Vehicle Act, 1988

came into force from 1st July, 1989 which now governs the accident claim and

compensation made before Motor Accident Claims Tribunal. An injured, and in the

case of a fatal accident, legal representatives of deceased are entitled to claim

compensation under the Motor Vehicles Act by filling a claim petition in the Motor

Accident Claims Tribunal within six months from the date of accident. The Tribunal

may entertain a claim petition even after the expiry of six months if it is satisfied

that there was a sufficient cause preventing presentation of petition within time. The

claim is also satisfied by the insurance company to the owner of the vehicle in

accordance with their legal liability.

The person suffering the damages is entitled to full compensation for the

financial loss suffered. The clear principle of the law is that 'the plaintiff can

recover subject to the rules, full compensation for the pecuniary loss he has suffered.

In Anoop Singh Vs. Inder Singh and Ors.70

Madhya Pradesh High Court stated that

in case of personal injury damages which are awarded falls under two heads.

1. For pecuniary losses and

2. for non-pecuniary losses

For the pecuniary losses full compensation can be awarded. As regards non-

pecuniary losses or general damages, items of loss and injury for which

compensation is claimed have to be ascertained and then the same has to be

quantified in terms of money. The Supreme Court in General Manager, Kerala State

Road Transport Corporation, Thiruvanathpuram Vs. Susamma Thomas71

stated that

the determination of the quantum of compensation must be such that it is fair

reasonable and accepted by all legal standards.

Justice Krishna Iyer, in Concord of India Insurance Co. Ltd. Vs. Nirmala

Devi72

, observed :

70 1987 ACJ 84 (M.P.) 71 A.I.R. 1994 (2) SCC 176 72 1980 ACJ 55 (SC)

145

... the jurisprudence of compensation for motor

accident must develop in the direction of no fault

liability, and the determination of the quantum must

be liberal, not niggardly since the law values life and

limb in a free country in generous scales. ....

Another system of compensation to injured party is provided for by the

Workmen's Compensation Act, 1923. The employer is obliged by an award of the

Labour Court to make payment of compensation to injured workman.

It is however observed in contrast that any scheme for state compensation of

victims of crime in any country is/should be taken into account the multiple

problems of wide spread ignorance, poverty and limited resources of that country.

The beginning will have necessarily to be modest. It is desirable also to draw the

line somewhere, having regard to the fact that the public exchequer has other far

more urgent priorities in the area of social and economic welfare. The contradiction

that exists at present between the state's responsibility to compensate the victim and

its inability to do so because of meagre resources can perhaps be resolved it personal

reparation by the offender to the victim is restored as one of the aims of penal law.

D. AFFIRMATIVE ACTION BY THE HIGHER JUDICIARY

(i) Restitution to Victims

Despite the absence of any special legislation to render justice to victims in

India, the Supreme Court has taken a proactive role and resorted to affirmative

action to protect the rights of victims of crime and abuse of power. The court has

adopted the concept of restorative justice and awarded compensation or restitution or

enhanced the amount of compensation to victims, beginning from the 1980s.

(Sukhdev Singh vs. State of Punjab (1982 SCC (Cr) 467) Balraj vs. State of U.P.

(1994 SCC (Cr) 823), Giani Ram vs. State of Haryana (AIR 1995 SC 2452), Baldev

Singh vs. State of Punjab (AIR 1996 SC 372).

146

(ii) Justice for Rape Victims - Guidelines for Victim Assistance

In Bodhisattwa Gautam vs. Subhra Chakdraborty (AIR 1996 SC 922), the

Supreme Court held that if the court trying an offence of rape has jurisdiction to

award compensation at the final stage, the Court also has the right to award interim

compensation. The court, having satisfied the prima face culpability of the accused,

ordered him to pay a sum of Rs. 1000 every month to the victim as interim

compensation along with arrears of compensation from the date of the complaint. It

is a landmark case in which the Supreme Court issued a set of guidelines to help

indigenous rape victims who cannot afford legal, medical and psychological

services, in accordance with the Principles of UN Declaration of Justice for Victims

of Crime and Abuse of Power, 1985:

(a) The complainants of sexual assault cases should be provided with a victim's

Advocate who is well-acquainted with the CJS to explain to the victim the

proceedings, and to assist her in the police station and in Court and to guide

her as to how to avail of psychological counselling or medical assistance

from other agencies;

(b) Legal assistance at the police station while she is being questioned;

(c) The police should be under a duty to inform the victim of her right to

representation before any questions are asked of her and the police report

should state that the victim was so informed;

(d) A list of Advocates willing to act in these cases should be kept at the police

station for victims who need a lawyer;

(e) The Advocate shall be appointed by the Court, in order to ensure that victims

are questioned without undue delay;

(f) In all rape trials, anonymity of the victims must be maintained;

(g) It is necessary, having regard to the Directive Principles contained under Art.

38(1) of the Constitution of India, to set up a Criminal Injuries

Compensation Board. Rape victims frequently incur substantial loss. Some,

for example, are too traumatized to continue in employment;

(h) 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

147

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

childbirth if this occurred as a result of the rape.

(iii) STATE COMPENSATION FOR VICTIMS OF ABUSE OF POWER

As early a 1983, the Supreme Court recognized the need for state

compensation in cases of abuse of power by the State machinery. In the landmark

case of Rudul Sah vs. State of Bihar (AIR 1983 SC 1086), the Supreme Court

ordered the Government of Bihar to pay to Rudul Sah a further sum of Rs. 30,000 as

compensation, which according to the court was of a “palliative nature”, in addition

to a sum of Rs. 5,000 in a case of illegal incarceration of the victim for long years.

Similarly in Saheli, a Women's Resources Centre through Mrs. Nalini Bhanot vs.

Commissioner of Police, Delhi Police (AIR 1990 SC 513), the Court awarded a sum

of Rs. 75,000 as state compensation to the victim's mother, holding that the victim

died due to beating by the police. In another landmark case of D.K. Basu vs. State of

West Bengal (AIR 1997 SC 610), the Supreme Court held that state compensation is

mandatory in cases of abuse of power and said that “To repair the wrong done and

give judicial redress for legal injury is a compulsion of judicial conscience.”

E. RECOMMENDATIONS OF COMMISSION AND COMMITTEES ON

JUSTICE TO VICTIM IN INDIA

During the last decade, there has been significant change in the thinking of

the judiciary about the human rights of victims. The concern of the courts and the

judicial commissions and committees about the need to have a law on victim

compensation or a comprehensive law on victim justice has been reflected in their

judgments and reports.

(i) The Law Commission of India, 1996

The Law Commission, in its report in 1996, stated that, “The State should

accept the principle of providing assistance to victims out of its own funds, (i) in

148

case of acquittals; or (ii) where the offender is not traceable, but the victim is

identified; and (iii) also in cases when the offence is proved” (Law Commission of

India Report, 1996).

(ii) The Justice Malimath Committee on Reforms of Criminal Justice System

(Government of India, 2003)

The Justice V.S. Malimath Committee has made many recommendations of

far-reaching significance to improve the position of victims of crime in the CJS,

including the victim's right to participate in cases and to adequate compensation.

Some of the significant recommendations include :

The victim, and if he is dead, his or her legal representative, shall

have the right to be impleaded as a party in every criminal proceeding

where the offence is punishable with seven years imprisonment or

more;

In select cases, with the permission of the court, an approved

voluntary organization shall also have the right to implead in court

proceedings;

The victim has a right to be represented by an advocate and the same

shall be provided at the cot of the State if the victim cannot afford a

lawyer;

The victim's right to participate in criminal trial shall include the

right: to produce evidence; to ask questions of the witnesses; to be

informed of the status of investigation and to move the court to issue

directions for further investigation; to be heard on issues relating to

bail and withdrawal of prosecution; and to advance arguments after

the submission of the prosecutor's arguments;

The right to prefer an appeal against any adverse order of acquittal of

the accused, convicting for a lesser offence, imposing inadequate

sentence, or granting inadequate compensation;

149

Legal services to victims may be extended to include psychiatric and

medical help, interim compensation, and protection against secondary

victimization;

Victim compensation is a State obligation in all serious crimes. This

is to be organised in separate legislation by Parliament. The draft bill

on the subject submitted to Government in 1995 by the Indian

Society of Victimology provides a tentative framework for

consideration;

The Victim Compensation Law will provide for the creation of a

Victim Compensation Fund to be administered possibly by the Legal

Services Authority. (Government of India, 2003).

(iii) The National Commission to Review the Working of the Constitution

The Commission to review the working of the Constitution (Government of

India, 2002) has advocated a victim-orientation to criminal justice administration,

with greater respect and consideration towards victims and their rights in the

investigative and prosecution processes, provision for greater choices to victims in

trial and disposition of the accused, and a scheme of reparation/compensation

particularly for victims of violent crimes.

The existing legal framework in relation to rights of victims of crime reveals

that except in the area of providing compensation, very little has been done either

statutorily or through schemes to address the entire range of problems faced by

victims of crime. There is a need to take a fresh look at the position in which the

victim of a crime is placed in our criminal justice system.

4.6 SHIFTING OF PARADIGMS IN CRIMINAL

JUSTICE

The proliferation of research about victims has raised larger questions about

the very purpose of criminal justice and the place of the victim within it. Victim

150

surveys have revealed that the public are no so punitive within it. Victim surverys

have revealed that the public are not so punitive as had been expected and that many

victims would welcome the opportunity to seek some reparation or even

reconciliation in place of traditional punishment. Such evidence together with the

growing dissatisfaction among academics, policy makers and criminal justice

professionals with the existing model of punishment, has prompted discussion of

models of reparative justice reoriented towards the aims of mediation and restitution.

It does not seem that the system ignores the victim because he is perceived as

a threat. Indeed, the victims too were not expressing a desire to take over the

criminal justice system. They did not want decision making power. They were

happy that decisions to charge, to prosecute and to sentence should be left with those

who are doing them today. However, with changing times victims have come

forward and started to express some interest in the possibility of using restitution

and mediation.

In the end, we can say the victim of crime indeed is a "forgotten man" in the

Criminal Justice System. Only in the last few years a general awakening has

occurred with respect to the unfortunate plight of the crime victims in the present

day criminal justice system. However, the renewed interest in the crime victim's

rights has occurred at the same time as it has been observed that there is a disturbing

trend in crime rates and law enforcement effectiveness.

The criminal justice system's capabilities to meet the challenge have failed to

keep the pace. Apprehension of persons committing crimes has fallen so faster that

crime rate has increased. Convictions in proportion to arrest have also fallen while

punishments have become more lenient. So also the cost of operating the criminal

justice system has increased.

If this trend is allowed to go unchecked, it will further erode credibility of the

criminal justice system and reduce people's faith and confidence in its efficacy and

further encouraging a tendency on their part to take law in their own hands.

Also, there is a growing tendency among the people not to report the crime to

police as studies reveal that the most common reason given for failure to report are

that the police would not bothered as they could not do any thing effective about it

151

any way. There is evidence from many victims and non-victims that he courts are

not highly regarded for their work.73

So as they believe that there is less change of

police catching the criminal. Moreover, millions of victims who are called upon by

the court as witness come to experience financial loss, inconvenience, intimidation,

outrage and emotional setback.

Though the crime victims and witness have been instrumental for the

successful solution of the cases. When victims choose not to cooperate with the

criminal justice system, whether failing to report crime, assist police in their

investigation, or assist in the prosecution as a witness, the success rate of the

government in apprehending, convicting and punishing persons committing crimes

becomes negligible. The conclusion is that a criminal justice system which ignores

or ill treats victims runs the risk of failure. Moreover, a massive lack of participation

by the people in the criminal justice system runs the risk of seriously damaging the

present constitutional ideals of criminal justice and permanently undermining the

government's crime control function.

The existing remedy of compensation and restitution to the victim should be

made legally and administratively practical for crime victims, not merely for the

exceptional or egregious situation. So also, the present laws on restitution should be

improved and new laws enabling the rights of the victims may be enacted and new

scheme of state compensation to the victim for his loss or injury may be provided.

Reorientation of the criminal justice process towards the victim is as yet in

its infancy but significant changes have already occurred, most importantly in

respect of compensating harms. At a time when desert based sentencing is gaining

way, simultaneous demands for a more victim oriented criminal justice system

challenge conventional means of assessing the gravity of offences. The proper

priority between victim oriented and desert based sentencing is far from being

resolved. The implications of, introducing the victim into that delicate balance

between the state and offender, between offence and penalty, will surely gain a

burning issue.

*******

73 P.R. Wilson and J.W. Brown : Crime and the Community, University of Queens Land Press, 1973