Wisdom Crux

Criminal Victimization & Justice Administration in India

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[Volume 2, Issue 4] – April, 2017

Author – Sewa Bishnoi, 2nd Year, B.A.LL.B, Symbiosis Law School Hyderabad

ABSTRACT

Rule of law, democracy, development and human rights are reliant on the level of accomplishment that the government can accomplish on the criminal equity front. The aim of the criminal equity are counteractive action and control of wrongdoing, upkeep of open request and peace, security of the privileges of casualty’s and additionally people in struggle with law, discipline and recovery of those decreed liable of carrying out of violations and by and large assurance of life and property against wrongdoing and culpability. It is viewed as the essential lcommitment of the state under the Constitution of India. Victims of crime may be any gender, age, race, or ethnicity. Victimization may happen to an individual, family, group, or community; and a crime itself may be to a person or property. The impact of crime on an individual victim, their loved ones, and their community depends on a variety of factors, but often crime victimization has significant emotional, psychological, physical, financial, and social consequences((Clause 1 Of The U.N declaration)).

INTRODUCTION

Victimization is the result of ponder move made by a man or organization to abuse, mistreat, or hurt another, or to pulverize or illicitly get another’s property or belonging. The Latin word victima signifies “Sacrificial creature,” yet the term casualty has developed to incorporate an assortment of targets, including oneself, another individual, a family, a business, the state, or nature. The demonstration carried out by the wrongdoer is typically an infringement of a criminal or common statute however does not really need to damage a law. Harm can incorporate mental harm, physical or sexual damage, or monetary misfortune.

Oxford English dictionary defines the “victim” as “a person harmed, injured or killed as a result of crime, accident, etc. The idea of victim through international conventions is also wide in its amplitude and in this regard UN General Assembly Declaration may be quoted((Articles 1 And 2, United Nations General Assembly Declaration Of Basic Principles Of Justice For Victim And Abuse Of Power Adopted In November 1985.)) which gives an extensive definition of the phrase’ victim’ as a person who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violations of criminal laws operative within member states, including those laws proscribing criminal abuse of power’.

ROLE OF JUDICIARY IN EMANICIPATING RIGHTS OF VICTIMS

Regarding the Indian Criminal Justice system, The Code of Criminal Procedure, 1973 has been deficient in defining ‘victim’. Even idea of victimization is also left to academicians and nothing substantial is reflected either in the substantive law or procedural safeguards.  Section 2(a) of the Code of Criminal Procedure((Added By The Code Of Criminal Procedure (Amendment) Act, 2008)) defines ‘victim’ as ‘a person who has suffered any loss or and the expression ‘victim’ includes his or her guardian or legal heir

At first, the criminal justice in India concentrated on discipline as a feature of the wrongdoing without much consideration on the misery of casualties of wrongdoing. The privileges of detainees were secured even after their conviction while little concern was appeared for the privileges of the casualty of wrongdoing. Be that as it may, with the development of open intrigue prosecution the higher courts consideration was attracted to these lacunae in the current criminal justice by social activists and the courts began giving compensatory help to casualties of wrongdoing, yet a thorough enactment on this part of criminal justice was still anticipated.

Concern was expressed for the plight of the victims of crime by Justice V. R. Krishna Iyer when he commented:

                           “The criminal law in India is not victim oriented and the hardship of the victim, often too extensive for entirely overlooked in misplaced sympathy for the criminal. Though our modern criminal law is designed to punish as well as reform the criminals, yet it overlooks the by-product of crime i.e. the victims((The judgment of Krishna Iyer,J., for the court was concurred with by Pathak, J in a separate opinion who sought t restrict the right of a private party other than a complainant to file a special leave petition “in those case only where it is convinced where the public interest justifies an appeal against acquittal and that the state has refrained from petition for special leave for reasons which do not bear on the public interest but are prompted by private influence, want of bonafide and other extraneous considerations.))”

The right of victim of crime to receive compensation was recognized even under the code of criminal procedure ,1898((S.545(1&2) And S.546 Cr.PC1898)) but was available only where a substantive sentence of fine was imposed and was limited to the amount of fine actually realized Sec.357(3) ,Cr.PC 1973 permits the grant of compensation even where the accused is not sentenced to fine((S.357(3) “ When, A Court Imposes A Sentence, Of Which Fine Does Not Form A Part, The Court May, When      Passing Judgment 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)). However, this provision is invoked sparingly and inconsistently by the courts((In Hari Singh Vs Sukhvir Singh (1988) 4 SCC 551,The Supreme Court Had To Exhort The Criminal Courts To Use This Provision Since “ This Power Was Intended To Do Something To Reassure The Victim That He Or She Is Not In The Criminal Justice System.” Recently , In Pamula Saraswathi V. State Of A,P(2003)3 SCC 317, The SC ,While Affirming The Conviction Of The Four Assailants Of The Appellant’s Husband, Directed Them To Pay A Fine Of Rs.10,000/- Each Which Was Then Directed To Be Paid To The Appellant)).

 The different arrangements of Indian legal system are making strides toward elevating the privileges of the casualty. Under Constitution of India there are a few arrangements which specifically or in a roundabout way perceive the privileges of casualty and furthermore accommodate the major strategy for securing and advancing the casualty’s privilege. The arrangements in the Preamble, Part III and Part IV of the Constitution are pertinent in such manner

The principle enshrined under Article 14 of the Constitution((Equality Before Law)) insures ‘equal protection of laws’ that demands care and protection of victim by and within the code of Criminal Procedure Code which till now may have tendency to protecting rights of offenders only. Fundamental right enshrined in Article 21((No Person Shall Be Deprived Of His Life Or Personal Liberty Except According To Procedure Established By Law)) of the constitution is wide enough to include greater protection to the victims of crime and, as it insures human dignity to all, it must recognize rights of victim by providing them better care and protection.(( Hussainara Khatoon V. State Of Bihar AIR 1979 SC 1360; Joginder Singh V. State Of Uttar Pradesh, 1994 AIR 1349))

The Directive Principles of State Policy enshrined under Part IV provides for basic policies for the social and economic betterment and development of individual as well as groups and thereby provides ‘foundation for a new social order’ in which justice, social and economic, would flower in the national life of the country.((Article 13 Of The Indian Constitution)) It insures that the state shall make effective provision for securing public assistance in cases of disablement and in other cases of undeserved want.”((Article 41 Of The Indian Constitution))  This provision has great visions to victimology, in a wider perspective, as it mandates that public assistance must be provided to such vulnerable sections of society. In fact, crime victims and other victimized people fall into the domain of Article 41((Right To Work, To Education And To Public Assistance In Certain Cases)). Another set of provision is Article 51-A((Fundamental Duties)) which provides a fundamental duty to every citizen of India to protect and improve the natural environment…and to have compassion for living creatures” and “to develop humanism”.

In Nirmal Singh Kahilon v. State of Punjab,((2009 1 SCC 441)) 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. Therefore a victim of a crime is equally entitled to a fair investigation.

Under Criminal Procedure Code of 1973, the rights and protection of victims are available under these provisions like Sections 154(2)((Information In Cognizable Cases- A Copy Of The Information As Recorded Shall Be Given Forthwith, Free Of Cost, To The Informant)), 160(( Section 160- Police Officer’s Power To Require Attendance Of Witness)), 190((Cognizance Of Offences By Magistrates)), 406((Power Of Supreme Court To Transfer Cases And Appeals)) and 439((Section 439- Special Powers Of High Court Or Court Of Session Regarding Bail)). 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 insdensitive 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 victimization 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.

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 as seen in the cases of Sukhdev Singh vs. State of Punjab((AIR1982 SCC (Cr) 467)), Balraj vs . State of U. P.((AIR1994 SCC (Cr) 823)); Giani Ram vs. State of Haryana ((AIR 1995 SC 2452)).

In Bodhisattwa Gautam vs . Subhra Chakraborty((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 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.

There is no different law for the wrongdoing casualties yet. There are arrangements in much enactment yet for the entire sole reason that incorporates just casualties still there is no law. Be that as it may, consistent endeavors are being advanced to authorize a national law.

The issue of defilement can likewise be found in the circle of Indian Criminal Justice System where debasement of open authorities has worn the whole soundness of the general public and in this way consequently the general population in all segments of the populace is defrauded. Many strides have been taken to decrease the level of defilement and aggregations of illicit riches have been taken up by the Government.

There have been times where genuine endeavors have been advanced to change the customary resigned and exploited parts of women have been taken up by NGOs and the Government. One such exertion is the reliable battle and dynamic endeavors by ladies’ associations to get more political power for women as representation in the Parliament, state lawmaking bodies and neighborhood bodies through a 33% reservation of seats for ladies in these bodies. Ladies have as of now prevailing with regards to getting representation in nearby self-government however the battle keeps on getting bookings for ladies in Parliament and state lawmaking bodies.

Making essential instruction a basic directly under the Constitution is a jumping venture to enable kids as training is the apparatus for improvement. The usage of this correct will have a direction on different sorts of exploitation, such as child labor.

In Mangilal v State of M.P((AIR 1994 SCC(4))), the Supreme Court dealt with the scope of Section 357(3) of Cr.P.C in detail. The Court observed: – “The power of the court to award compensation to the victims under Section 357 is not ancillary to other sentences but is in addition thereto….. Such power is available to be exercised by an appellate court or by the High Court or Court of Sessions when exercising revision powers”.

In the current decade of victim logical research, there is a considerable interest in the study of impact of crime on victims and ways to assist them. Assistance to victims of crime is of great significance because victims have suffered irreparable damages and harm as a result of crime. The problems of crime victims and the impact of crime on them is varied and complex. 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. The Government of India and the State Governments should enact exclusive legislations for victims of crime, as the existing provisions in the criminal laws are not sufficient.

 A ray of hope is the recommendations of the Committee on Reforms of Criminal Justice System headed by Justice V. S. Malimath. Hence, the Government of India may have to take efforts to implement the recommendations of the Committee on Reforms of Criminal Justice System. There should also be a change in the focus from criminal justice to victim justice, but victim justice should be perceived as complementary and not contradictory to criminal justice.((Report Of The Committee On Reforms Of Criminal Justice System, Government Of India Ministry Of Home Affairs – Vol 1 , March 2003(Herein After Referred To As ‘ The Malimath Committee Report’), 75))

The struggle by victims to gain their formal rights within the criminal justice system continues on many fronts. As the analysis presented above states that the obstacles that the victims encounter have arise from many sources. Resistance from the victim’s ostensible allies within the criminal justice system tends to be low profile, and take the form of foot- dragging, cooptation and objections on pragmatic grounds.

RIGHTS OF VICTIMS IN UNITED STATES OF AMERICA

A crime victim has the following rights:

  • The right to be reasonably protected from the accused.
  • The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused.
  • The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding.
  • The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding.
  • The reasonable right to confer with the attorney for the Government in the case.
  • The right to full and timely restitution as provided in law.
  • The right to proceedings free from unreasonable delay.
  • The right to be treated with fairness and with respect for the victim’s dignity and privacy

RIGHTS OF VICTIMS IN CANADA

In Canada the Victims Bill of Rights Act was passed in 2015 which gives victims of crime a more effective voice in the criminal justice system, came into force. This legislation creates the Canadian Victims Bill of Rights to provide clear statutory rights at the federal level for victims of crime for the first time in Canada’s history. The Canadian Victims Bill of Rights establishes statutory rights to information, protection, and participation and to seek restitution, and it ensures that a complaint process is in place for breaches of these rights by a federal department or agency.

Under the Canadian Victims Bill of Rights, when a victim believes that his or her rights have been breached, the victim first files a complaint with the appropriate federal department or agency. The legislation includes a requirement for all federal departments and agencies that have responsibilities under the Canadian Victims Bill of Rights to have internal complaint mechanisms accessible to victims to review complaints, make recommendations to correct any infringement, and notify victims about the results of the review.

Grumblings in regards to a common or regional office, including police, prosecutors, and casualty administrations, will be tended to as per the relevant commonplace or regional enactment. With a specific end goal to enhance the cures accessible to casualties, the central government is giving financing through the Victims Fund to areas and regions to improve or build up protestation bodies for casualties of wrongdoing. This financing energizes a level of consistency in the dissensions components accessible to casualties of wrongdoing the nation over without drawing stores from effective existing projects for casualties of wrongdoing.

A casualty can practice the rights in the Canadian Victims Bill of Rights while an offense is being researched or indicted and keeping in mind that the guilty party is liable to the rectifications or restrictive discharge handle. For cases in which a charged has been discovered unfit to stand trial or not criminally capable by virtue of mental issue, the casualty can practice the rights while the blamed is under the locale for a court or Review Board.

CONCLUSION

 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 .A victim is a person who has “suffered harm, including physical or mental injury ,emotional sufferings, economic loss or substantial impairment of fundamental rights.

Though the criminal justice system has changed its purview and the legislatures and judges have been playing a significant role in the expansion of the rights of victims of crime in the criminal justice administration of the country, yet the victims have not received their due concern and their rights have not been given their due weightage. Victims have few legal rights to be informed, present and heard within the criminal justice system. But unfortunately, victims do not have to be notified of court proceedings or of the arrest or release of the defendant, they have no right to attend the trial or other proceedings, and they have no right to make a statement to the court at sentencing or at other hearings. Moreover, victim assistance programs are virtually non-existent

Various circumstances the casualties get disregarded and reprimanded for catastrophe they go up against. It’s the overall population’s perspective towards casualties of wrongdoing that the all inclusive community normally blames the casualty and don’t have the sympathy for them. Had the law been extraordinary on the offenders and managed the benefits of casualties of wrongdoing, the condition would have been altogether different times the judiciary are concerned with the rights of the accused or the criminal. Hence, a strong message regarding victims’ rights is not forwarded to the people by them and therefore, the society does not feel the sympathy for the distressed victims.

Editor – Varuni Yadav – Asst. Professor, Amity Law School, Amity University, Noida Campus, Uttar Pradesh