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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
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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.
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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
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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
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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)
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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.
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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.
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(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.
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(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.
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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).
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(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
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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
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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