“Tears shed for the accused are traditional and ‘trendy’ but has the law none for the victim of crime, the unknown martyrs"[1]?
This remark by the Hon’ble Justice VK Krishna Iyer aptly describes the plight of victims in the criminal justice system in our country. The victim is almost a forgotten entity in the criminal system rather the irony is that the victim sets the wheel of justice moving by giving information to the state instrumentalities without which the entire system could collapse. But still, the role of victim in the overall process is insignificant.

The term victim is defined in Criminal Procedure Code 1973 section 2(wa) as “Victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim" includes his or her guardian or legal heir.

Victimization can be defined in a layman’s term as the process of being victimized or becoming a victim. There are several forms of victimization such as primary, secondary, re-victimization, and self-victimization. Primary victimization is victimization caused due to the direct commission of a crime by the offender to the victim whereas secondary victimization (also known as post crime victimization or double victimization) occurs due to imbalances in the perception of state agencies/institutions/instrumentalities. Re-victimization happens when the victim is being victimized again. Self-victimization is using a variety of reasons to justify abuse.

The primary goal of a criminal justice system is undoubtedly the protection of individual life, liberty, and property. The modern criminal law is supposed to represent the ambitions and norms of the society as well as to punish and reform the criminals but it overlooks the victim. The criminal justice system in our country is based on the premise that ‘hundred guilty men should be let free, but one innocent man should not be punished’.

The jurisprudence of our criminal system traces its roots in the reformatory theory of punishment which aims to achieve societal balance by rehabilitating the criminals. The Indian Criminal jurisprudence which is embodied mainly in Indian Penal Code (‘IPC’) and Code of Criminal Procedure (‘CrPC) has umpteen provisions to ensure that the liberty of is not chained such as presumption of innocence, the right to legal assistance, right to fair trial, right of the accused to be informed of charges before trial, and right to present a defense. During the unending process of trial in our country, the sufferings of victims are entirely overlooked by sympathy for the accused. But of late, it has been realized by the courts that the ultimate wrong has been done to the victim and his welfare is of the same importance as that of the accused. The attitude has begun to change. Many countries around the world have recognized the need to provide rehabilitation and legal assistance to help them recover from the effects of crime.

The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power by the United Nations (‘UN Declaration’) is considered as ‘Magna Carta’ of victims rights. The UN Declaration has accentuated the need for minimum norms and standards in international law for the protection of victims of crime. With regard to the dismal state of the criminal justice system in the country, the government appointed the Malimath Committee to suggest reforms to the criminal justice system. The Malimath committee report emphasizes on ‘justice to victims’ as one its primary objectives. It aims to provide equity to victims of crime by permitting them, as an issue of ideal, in criminal procedures and compensation. The UN Declaration recognized four major components of the right of victims of crime – access to justice and fair treatment, restitution, compensation, and assistance.

Access to justice is the availability of relief to the victim by various judicial or non-judicial institutions. The victims who set the criminal justice system in motion by giving information are left at the mercy of Station Inspector (SI) who sometimes even refuses to register the complaint. The victim as an informant is entitled to a free copy of FIR but most of the times it is not given. The position of women and children who happen to be a victim can be tragic especially in case of rape victims where delay in collection of samples can render the entire case baseless. Sometimes, the rape victims are being held in protective custody for taking evidence which has no legal basis. Even though, the accused is entitled to engage the advocate of his choice, the victim is not. Section 24(8) of CrPC provides that the court may permit the victim to engage an advocate of his/her choice to assist the prosecution. Section 301(2) of CrPC mandates that any lawyer appointed by the victim shall act under the directions of the prosecutor and with the permission of the court may submit written arguments after the evidence is closed. Section 157 of CrPC laid down that in relation to the offence of rape, the recording of statement of the victim shall be conducted at the residence by a woman police officer in presence of A guardian. Section 164(1) provides that the audio-video confession can be given by the victim, not only with confession but testimony of witness may be recorded in an audio-visual electronic device. In Sakshi v. Union of India, the Supreme Court mandated ‘in-camera’ trials particularly when the victim is a child or rape victim to maintain their dignity.

InNirmal Singh Kahilon v. State of Punjab[2], the Hon’ble Apex Court observed that the right to fair investigation and trial is applicable to the accused as well as the victim and such a right to a victim is provided under Article 21 of the Constitution of India. Ergo, a victim of a crime is equally entitled to a fair investigation.

In Bodhisattwa Gautam v. Subhra Chakraborty[3], 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 facie 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.

Restitution can be defined as restoring to an earlier position or returning the stolen thing to the real owner. The right of victims to restitution has not gained statutory recognition. The courts have inclined to examine the plea of victims for redressal of the losses suffered during violent incidents including riots and cast clashes. The principle that is evoked is ‘culpable inaction’ under which the state instrumentalities are expected to anticipate the losses or damage to public and private property where the victims have no control. The courts have gone as far as to find the state liable only where a definite failure on its part has resulted in a loss.

In R. Gandhi v. Union of India[4], the Madras High Court, acting on the report of a commissioner appointed by it to assess the losses directed payment of varying amount of compensation for the loss of property of Sikh community in Coimbatore.

The right of victim compensation has been well recognized under the CrPC but is available only where a substantive sentence of the fine was imposed and was limited to the amount of fine actually realized. Section 357(3) authorizes the magistrate to impose fine where fine has not been imposed. However, this section is invoked sparingly and inconsistently by the courts. The 152nd Report of the Law Commission had recommended the introduction of section 357-A prescribing inter alia that compensation should be awarded at the time of sentencing to the victims of crime amounting to Rs. 25,000/- in case of bodily injury, not resulting in death and Rs 1,00,000/- in case of death. Since the recommendation of the report had not been incorporated by the government, the 154th Report mandated the incorporation of section 357-A.

The higher courts have established a base for victim compensation even in custodial deaths. The Supreme Court in Nilabati Behra v. State of Orissa[5] observed that “it was not enough to relegate the heirs of victims of custodial deaths to the ordinary remedy of civil suit". The right to get relief or compensation from public law courts exercising writ jurisdiction was explicitly recognized.

Conclusion
Providing assistance to victims of crime is of great significance because victims have suffered irreparable damages and harm as a result of a crime. The problems of victims and the impact of crime are long-lasting. Therefore, the agencies of the criminal justice system should be receptive to the needs of the victims of crime and address their issues sincerely and empathetically. Various efforts are made to improve the criminal justice system in India by the judiciary but there is a lot to be done in order to make a conducive environment for victims. Measures including passing a dedicated law for victims’ welfare to sensitizing the state agencies to the needs of a victim would ensure victim welfare.

End-Notes
[1] 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
[2] 2009 1 SCC 441.
[3] AIR 1996 SC 922.
[4] AIR 1989 Mad 205.
[5] (1993) 2 SCC 746.

 

Articles on Victim Compensation in India:

Compensation to the Victim of Crime: Assessing Legislative Frame Work and Role of Indian Courts
Victim Compensation Scheme: An Aspect of Modern Criminology
Compensatory Jurisprudence
Uncivilized And Heartless Crime: SC Enhances Compensation To Acid Attack Victim
Victims Rights in India
An analysis of law relating to Accident Claims in India
Compensation: A Ray of Hope
Legal Pronouncements for Compensation under Section 166 of the Motor Vehicles Act, 1988
Remedy of Compensation under Article 32
Gender Sensitization and Rehabilitation of Rape Victims
Category-wise Analysis of Awarded Cases related to compensation to the Bhopal Gas Victims
Basic Principles of Victims of Crime with including the challenges and current scenario in India
Can Victims Claim Compensation?
Speed Break To Section 304-A of IPC
Rights of Accused Far Outweigh That of Victims, Need Some Balancing So That Criminal Proceedings Are Fair To Both
Victims, victimization and victimology
Quantum of damages in Tort Law
Rehabilitation of Trafficked Children in India: Socio and Legal framework
Legal Aspects of the Bhopal Gas Tragedy
Compensatory Jurisprudence In India
Role of Decisions Law In Developing Concept of Compensatory Jurisprudence
Vitriolage - The Brutalization of Human Body
Trafficking in Women and Children - An ounce of prevention is worth a pound of cure