STATUS OF VICTIMS IN CJS IN INDIA

Dr Janaki M C1
Manikanta T2

ABSTRACT

The problem of crime exists in our society since the society. All though the laws and
statues are framed still control over the act of crime is not yet possible. The victims of such acts
are undergoing tremendous pain and agony for no fault of theirs and the act occurred due to the
lack of preventive measures of enforcement agency. So in such a condition the victims of crime
needs protection from all sorts of supports by the means of physical, psychological, economical
etc, but in real scenario are they getting any such support from the any of the institution of
Criminal Justice System are the million dollar question. Hence, the present paper is an attempt to
analyze the status of victims during due process and providing justice to them.

Key Words: Victims, CJS, Rights

Indeed, history is nothing more than a tableau of Crimes and misfortunes

Voltaire

Introduction:

Crime is a universal phenomenon, which was reflected by many studies across the globe.
Crime is a social evil. Crime is the most attention seeking problems among the society as the
damage is very sever. Crime has spread without discriminating any society whether it’s a
primitive or modern, country whether developed or developing. Crime is damaging the societal
foundation. Criminals are not born they are made by situation and opportunity many a time.
Criminals attempt criminal activities because of their excessive anger or lack of endurance,
whereas some criminals want to recover themselves from such activity. Criminal justice system
is doing more than punishing by reforming them but at the same time it as forgotten about the
victim one who is suffering from the act for which they are not responsible.

1
Guest Faculty, Dept of Criminology & Forensic Science, Govt. College Women (Autonomous), Mandya.
2
Guest Faculty, Dept of Criminology & Forensic Science, Govt. College Women (Autonomous), Mandya.
Table No 1 Crime trend during past 5 years

Sl. No Year Percentage of crime

1 2011 37.2%
2 2012 39.5%
3 2013 39.9%
4 2014 39.4%
5 2015 40.3%
Source: Crime in India 2015.

The above table represents the increasing trend of the crime scenario in India where it is
found a study growth comparing to previous years. Whereas, there is an increase of 19.9% in
crime rate during the past five year. Crime data clearly indicates that there is an overall growth of
crime in India during 2015 is 1.3%, which means the numbers of victims were also considerably
increased. Solution for the crime is still not yet found as well as the solution for victim’s endless
wretchedness.

Definition of a victim:

A victim is defined as a person who has suffered physical or emotional harm, property
damage, or economic loss as a result of a crime.

The following people can exercise a victim’s rights if the victim is dead or not able to act on
his or her own behalf:
 A victim’s spouse
 A relative or dependant of the victim
 Anyone who has custody of the victim or of the victim’s dependant

Protection of Victims’ Rights under International Law:

The UN Commission on Crime Prevention and Criminal Justice (Crime Commission)

develops, monitors, and reviews the implementation of the UN Crime Prevention and Criminal
Justice Program (Criminal Justice Program). From its outset in the 1950s, the Criminal Justice
Program has sought to replace retributive criminal justice with more effective and humane
policies. Respect for the human rights of offenders and prisoners were key early considerations
behind the standards and norms for crime prevention and criminal justice adopted by the UN in
subsequent decades. In the 1980s, the Committee on Crime Prevention and Control, the
predecessor to the Crime Commission, widened the Criminal Justice Program’s focus to include
better treatment for crime victims, resulting in the adoption of the Victims’ Declaration by the
General Assembly in 1985.

Apart from insisting on the need to treat victims with “compassion and respect for their
dignity,” one of the striking and progressive features of the Victims’ Declaration is that it
considers an individual to be a victim, regardless of whether the state identifies, apprehends,
prosecutes, or convicts the perpetrator. The term “victim” also includes the immediate family or
dependants of the direct victim and individuals who have suffered harm while trying to prevent
victimization, such as witnesses or human rights defenders. The available judicial and
administrative mechanisms should enable victims “to obtain redress through formal or informal
procedures that are expeditious, fair, inexpensive and accessible.” The Victims’ Declaration
advocates for restitution, compensation, and “material, medical, psychological and social”
assistance in the interests of justice. Some of the specific rights enshrined in the Victims’
Declaration include the right to be referred to adequate support services; the right to receive
information about the progress of the case; the right to privacy; the right to counsel; the right to
protection from intimidation and retaliation; and the right to compensation, from both the
offender and the state.

The Current Situation in India

The Indian Constitution has several provisions which endorse the principle of victim and
victim compensation. The collection of clauses dealing with Fundamental Rights (Part III) and
Directive Principles of State Policy (Part IV) laid the foundation for a new social order in which
justice, social and economic rights would bloom among the life citizens of country (Article 38).
Article 41, which has relevance to Victimology in a wider perspective, mandates, interalia, that
the state shall make effective provision for “securing public assistance in cases of disablement
and in other cases of undeserved want”. Certainly, crime victims and other victimized people
come under the purview of Article 41. Article 51-A makes it a fundamental duty of every citizen
of India “to protect and improve the natural environment … and to have compassion for living
creatures” and “to develop humanism”. If interpreted and skillfully explained, we find the initial
stages of Victimology in Indian constitution (Krishna Iyer, 1999). Further, the guarantee against
unjustified deprivation of life and liberty (Article 21) has in it elements obligating the state to
compensate victims of criminal violence (Basu, 2003).

The criminal justice system in India would ensure effective and speedy justice once the
law recognizes the rights of victims. In 2008, the Government undertook major amendments to
the Criminal Procedure Code of 1973, in order to strengthen India’s criminal system. The
amendment focusing on victim-justice, for the first time sought to define the term “victim” and
refurbish the defunct laws related to provision of compensation to victims. Unfortunately it once
again leaves the provision of compensation to the sole discretion of the judge; something that has
been rarely exercised of their own accord in the past the vanishing point of Indian victim
compensation law.
Apart from the above important statues several other laws protect and care for the victims
are like: Prevention of Caste-Based Victimization and Protection for Victims: The Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, The Protection of Women
from Domestic Violence Act, 2005, The Maintenance and Welfare of Parents and Senior
Citizens Act, 2007, Prevention of Child Abuse and Victim Protection etc. Even though the
constitution and several other statues promotes the victim rights still India has largely failed or
rather we can say that it ignored the protection of victims’ rights, irrespective of whether the
perpetrator is the state or a private individual.

Role of Judiciary in Upholding Rights of Victims

Historically speaking, Criminal Justice System seems to exist to protect the power, the
privilege and the values of the elite sections in society. The way crimes are defined and the
system is administered demonstrate that there is an element of truth in the above perception even
in modern times.

What happens to the right of the victim to get justice to the harm suffered? Well, he can
be satisfied if the State successfully gets the criminal punished to death, a prison sentence or fine.
How does he get justice if the State does not succeed in so doing? Can he ask the State to
compensate him for the injury? In principle, that should be the logical consequence in such a
situation; but the State which makes the law absolves itself In the process of this transformation
of torts to crimes, the focus of attention of the system shifted from the real victim who suffered
the injury (as a result of the failure of the State) to the offender and how he is dealt with by the
State which makes the law absolves itself of such liability. Not only the victim’s right to
compensation was ignored except a token provision under the Criminal Procedure Code but also
the right to participate as the dominant stakeholder in criminal proceedings was taken away from
him. He has no right to lead evidence, he cannot challenge the evidence through cross-
examination of witnesses nor can he advance arguments to influence decision-making.

The right of victim, or a person aggrieved, engaged the attention of the Court time and
again. In the year 1955, a Division Bench of the Assam High Court, in case of N.C. Bose vs.
Prabodh Dutt Gupta reported in ILR 1955 (Assam)116, emphasized the need of right of a private
party or victim in case of wrongful acquittal of the case. The relevant extract of the Court’s
observations read as under:

"It seems to me that the person vitally interested in the issue of the prosecution or the trial
is the person aggrieved who ‘initiates’ the proceedings. He may be both civilly and
criminally liable if, on account of any unfairness or partiality, the trial or the proceeding
ends in wrongful acquittal or discharge of the accused. The Legislature therefore could
not have intended to shut out such a person from coming to the High Court and claiming
redress under Section 526 of the Code. The words should be construed to have the widest
amplitude so long as the effect of the interpretation is not to open the door to frivolous
applications at the instance of intermeddlers or officious persons having no direct interest
in the prosecution or trial".

In Sarwan Singh & Ors. vs. State of Punjab [(1978) 4 SCC 111], this Court held :
"...Though Section 545 enabled the court only to pay compensation out of the fine that would be
imposed under the law, by Section 357 (3) when a Court imposes a sentence, of which fine does
not form a part, the Court may direct the accused to pay compensation. In awarding
compensation it is necessary for the court to decide whether the case is a fit one in which
compensation has to be awarded. If it is found that compensation should be paid, then the
capacity of the accused to pay compensation has to be determined. In directing compensation,
the object is to collect the fine and pay it to the person who has suffered the loss. The purpose
will not be served if the accused is not able to pay the fine or compensation for, imposing a
default sentence for non-payment of fine would not achieve the object. If the accused is in a
position to pay the compensation to the injured or his dependents to which they are entitled to,
there could be no reason for the court not directing such compensation. When a person, who
caused injury due to negligence or is made vicariously liable is bound to pay compensation it is
only appropriate to direct payment by the accused who is guilty of causing an injury with the
necessary mens rea to pay compensation for the person who has suffered injury."

In Hari Singh v. Sukhbir Singh & Others [(1988) 4 SCC 551: 1998 SCC (Cri) 984] this
Court lamented:

"Sub-section (1) of Section 357 provides power to award compensation to victims of the
offence out of the sentence of fine imposed on accused. In this case, we are not concerned with
sub-section (1). We are concerned only with sub-section (3). It is an important provision but
courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court
to award compensation to victims while passing judgment of conviction. In addition to
conviction, the court may order the accused to pay some amount by way of compensation to
victim who has suffered by the action of accused. It may be noted that this power of courts to
award compensation is not ancillary to other sentences but it is in addition thereto. This power
was intended to do something to reassure the victim that he or she is not forgotten in the criminal
justice system. It is a measure of responding appropriately to crime as well of reconciling the
victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a
step forward in our criminal justice system. We, therefore, recommend to all courts to exercise
this power liberally so as to meet the ends of justice in a better way.

It was further opined:-

"The payment by way of compensation must, however, be reasonable. What is reasonable
may depend upon the facts and circumstances of each case. The quantum of
compensation may be determined by taking into account the nature of crime, the justness
 of claim by the victim and the ability of accused to pay. If there are more than one
accused they may be asked to pay in equal terms unless their capacity to pay varies
considerably. The payment may also vary depending upon the acts of each accused.
Reasonable period for payment of compensation, if necessary by instalments, may also be
given. The court may enforce the order by imposing sentence in default."

Manohar Singh vs State Of Rajasthan And Others it is opined by the court that: The
long line of judicial pronouncements of this Court recognized in no uncertain terms a paradigm
shift in the approach towards victims of crimes who were held entitled to reparation, restitution
or compensation for loss or injury suffered by them. This shift from retribution to restitution
began in the mid-1960s and gained momentum in the decades that followed. Interestingly the
clock appears to have come full circle by the lawmakers and courts going back in a great
measure to what was in ancient times common place. Harvard Law Review (1984) in an article
on Victim Restitution in Criminal Law Process: A Procedural Analysis sums up the historical
perspective of the concept of restitution in the following words:

"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 standard practice to require an offender to
reimburse the victim or his family for any loss caused by the offense. 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. It was a means by which the
offender could buy back the peace he had 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."

Conclusion:

Protection and redress for victims of crime must become a primary concern in India.
Cases like Best Bakery illustrate the predominant need to incorporate and institutionalize within
the Indian legal system the rights and interests of victims and witnesses in order to ensure that
justice are served. Incorporating into Indian law many of the rights enshrined in the Victims’
Declaration could be a significant step towards this goal. This includes the right of victims to be
heard from the time they become victims until the conclusion of the legal process.

In India many challenges are faced in the process of prevention of victimization and the
protection of victims, which needs to be tackled through some positive and effective measures.
Some of the challenges and the countermeasures include:

1. No separate Victims Law:

Special Victims Rights Act, needs to be enacted based up on UN Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power.
2. Corruption in CJS
Corruption in all section of the CJS is eroding the general public which needs to be
controlled.
3. Empowerment
There is need of empowerment among the weaker section in the society
4. Lack of Awareness
There is need of channelizing the awareness and education about the procedure and
working process of CJS to the general public
5. Lack of Public Participation
There is need of coordination and participation to curtail the problems of victimization
with Good Samaritan law
References:

Basu, D.D. (2003) Constitutional Law of India. Nagpur: Wadhwa & Co.

Chockalingam, K. (1985). Readings in Victimology , Raviraj Publications, (Ed.) Chennai:

India.

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, G.A.
Res. 40/34, U.N. Doc. A/RES/40/34 (Nov. 29, 1985).

Government of India (2003) Report of the Committee on Reforms of Criminal Justice System,
1, pp. 75–84.

Government of India. (2015). Crime in India, National Crime Records Bureau, Ministry of
Home Affairs, New Delhi.

Hari Singh vs. Sukhbir Singh & Others. [(1988) 4 SCC 551]

Harvard Law Review. (1984)

Krishna Iyer, V.R. (1999) A Burgeoning Global Jurisprudence of Victimology and Some
Compassionate Dimensions of India Justice to Victims of Crime. Unpublished Paper.

Mangilal vs. State of Madhya Pradesh. (AIR 2004 SC 1280)

N.C. Bose vs. Prabodh Dutt Gupta reported in ILR 1955 (Assam) 116

Nida Zainab Naqvi. (2016). Rights of Victims in India’s Criminal Justice System – Analysis,
Euroasia Review-News & Analysis, Cannada.

Sarwan Singh & Others. vs. State of Punjab. [(1978) 4 SCC 111]

Manohar Singh vs State of Rajasthan and Others. (2010) 6 SCC 230

Zahira Habibullah Sheikh & Anr. vs. State of Gujarat & Others. AIR 2006 SC 1367, ("Best
Bakery Case")