Victim’s Empowerment in the Criminal Justice System

In this project, I shall talk about how a victim could be more empowered in the existing criminal justice system. I shall divide my project into 4 sections and a conclusion. In the first section, I shall talk about all the powers that have been given to the victim of a crime under the Criminal Procedure Code [1] . A victim can participate in both pre trial and post trial stages, the relevant sections of CRPC would be mentioned and explained. In the second section, I shall discuss how the judiciary has tried to protect the rights of the victims by mentioning a few judicial decisions. In the third section, I shall mention all the suggestions that have been made by 152nd Law commission report 154th Law commission report Malimath Committee 2008 CRPC Amendment to rectify the lacuna of the law. In the fourth section, I shall present my own views on the topic and end by an apt conclusion. SECTION 1 The Black Law Dictionary defines the victim as -“The person who is the object of a crime or tort, as the victim of a robbery is the person robbed” Any citizen [2] can set the criminal law in motion by launching a First Information Report [3] under Section 154 of the CRPC. A victim is included within the ambit of informant under Section 154. Thus we can conclude that the victim has been given the power to set the criminal law in motion. The basis on which an FIR can be filed is if the informant has definite information about a cognizable offence [4] that can be investigated by the police. Whether the information is one under Section 154 is a matter of law and is not open to the police officer to use his discretion in this matter [5] . The information can be in written or oral. If it is in oral then it has to be reduced in writing by the requisite authorities.

What has been recorded has to be read over to the informant, it has to be signed by him and a copy of the FIR has to be handed to him free of cost [6] . If the police officer in charge refuses to file an FIR, then the informant can send the same information to the Superintend of Police in writing who, may, if satisfied that a cognizable offence has been committed, investigate the matter on his own or order someone to do so [7] . The power of the victim as an informant also extends to non-cognizable [8] cases. The informant is referred to the Magistrate under section 155(1). If the informant is not heard by the police in either a cognizable case or a non-cognizable case, and even the Superintendent of the Police fails to act on the complaint of the informant, then the informant can complain to the Magistrate who may take cognizance of the case under Section 190 of the CRPC. The Magistrate is required to take the informant on oath under section 200 of CRPC. The Magistrate is also empowered to order investigation under Section 202 of the CRPC for both cognizable and non cognizable cases. Once the police investigation begins, the victim has no role to play except to come as an witness in the trial to identify the accused or any other material objects [9] . There are a few more provisions in the CRPC that may help the victims- Section 357- this section deals with order to pay compensation. On the face of it, it seems that perhaps it provides to remedy the injustice done to the victim of the crime. But this provision is as badly drafted as it could ever be. It talks of allocating the fine imposed by the court on the accused as compensation to the victim. But they are certain limitations as to what this compensation would be – It could be used to pay off the prosecution expenses [10] – in this case we can hardly count it as compensation to the victim as he is left with nothing. It can be used to compensate for any loss or injury caused by the offence only if such compensation is also recoverable in the civil court [11] – the condition of the similar compensation recoverable under civil court puts unnecessary problems to the application of this provision If the convicted causes death, then damages can be recovered for the loss due to this death under the Fatal Accidents Act, 1855 [12] – this seems to be one provision that does justice Compensation has to be given to a bonafide purchaser of property who purchases it from someone who has got it through theft, misappropriation etc. [13] If the above sections attempted to help the victim in any way, Section 357(2) just complicates matters even more by stating that no such compensation shall be awarded if the case in which fine is imposed goes on appeal.

The compensation shall then be awarded only after disposal of appeal. We can very well imagine the problem with this section. As cases drag on for years in the court, the victim can do nothing but fight for justice and not even get compensated in the meanwhile. Wouldn’t it have been a better idea to provide for some compensation to the victim even if the case goes on appeal? Also, if the court has not ordered any fine, then by virtue of Section 357(3) compensation can be given if person has suffered any loss or injury by the accused.

This provision is sparingly used by the courts [14] . Section 357(5) hampers the aggrieved party’s attempt get justice in the civil court as it states that any compensation granted under this section shall be deducted from compensation demanded by the victim in a civil case. Another provision is section 378(4) of the CRPC which allows the complainant to appeal against the order of acquittal of the accused in the case, if the High Court grants an application of special leave to it for such appeal. A victim is the aggrieved party in a criminal case, the one who has been harassed, tortured, hurt or even worse, raped. The victim is the one who goes through a mental trauma after the offence has been committed and he or she is the one who has to continue living post the trauma. He or she files a case to get justice, to see the person responsible for doing the harm to him incarcerated so that it might be easier for him to live. Doesn’t providing justice to the victim then become the primary aim of the judicial system? How can any justice be provided if the victim plays no role after giving information about the offence, if it is not allowed to participate in the trial actively? What can be achieved if the victim just becomes a mute witness to the entire proceeding? It gets far worse in sexual offence cases, where the victim has to continually repeat the traumatic experience in front of unknown people so that the defence can take out inconsistencies in her account so that she can be termed a liar. A rape victim’s plight increases further when they are kept in legal custody such as nari niketans or ‘protective custody’ on the pretext that they are required to give evidence. [15] This kind of detention has no legal basis. [16] The plight of victims is not just restricted to cases of sexual offences but to all types of cases. Is there any solution? SECTION 2 In this section, I shall briefly mention a few cases and analyse whether the judiciary has actually been able to increase the participation of the victim in the criminal justice system. I shall also discuss the recommendations of the various committees and the 2008 Crpc amendment. In order to reduce the plight of rape victims, the SC laid down some guidelines in the Delhi Domestic Working Women Forum Case [17] . It said that- Complainant should be provided with a legal representative who ought be well acquainted with the criminal justice system The job of this representative shall be to Explain nature of the proceedings Prepare the victim for the case Provide assistance in the police station and the court.

Assistance in the police station shall be a must because the victim would be in a distressed state and a support of lawyer would be of great assistance. Provide guidance to the victim as to how help can be obtained from other agencies such as medical assistance The lawyer who is present at the police station should be present with the victim till the end of the trial The police is under the duty to inform the victim that it has the right to legal representation A list of advocates should be prepared who shall be willing to act in such cases. They should be made available at the police station as soon as possible for representing the victim in case her own lawyer is unavailable or the victim cannot engage such a lawyer. Such advocates might be appointed by leave of the court. However, since the leave might delay the process of giving information at the police station, they may act immediately. It is a sad fact that these remain as suggestions and have not been implemented.

The court in P Rathinam v State [18] laid down the law with respect to cancellation of bail. Justice Thomas delivering the judgement held that the complainant (that could include the victim) or any other aggrieved party could file an application for cancellation of bail under Section 439 of the CRPC. Thomas J said that there was no provision in section 439 that prevented the aggrieved party from filing such application and that it was the discretion of the High Court to either reject or allow this application. Courts have also interpreted the meaning of Section 320 of CRPC as that no case can be compounded without the participation of the complainant. [19] The Supreme Court in SA Karim [20] case allowed the application of a father of a police officer, who had been killed by a forest brigand, to set aside the judgement of the Trial Court which had withdrawn the prosecution. The Supreme Court made a very important observation in the Ramchandra Rao [21] case. It said that if the victim was left without a remedy, then it may resort to taking revenge by unlawful means resulting in further increase in the crimes and criminals.

This clearly brings out the fact that if the victim of the crime is not given a central role, then he shall become discontented and may develop a tendency to take law into his own hands in order to seek revenge and pose a threat to the maintenance of Rule of Law, essential for sustaining a democracy. [22] It is thus extremely important to satisfy the need of justice for the victim. It has also been held by the Supreme Court that the near relative of a victim, who is not a party to the proceedings, also has the right to file a Special Leave Petition under Article 136 of the Constitution to challenge an order of acquittal passed by the High Court. [23] The court in Bhagwant Singh [24] case analysed the sections 154 and 173 of the CRPC. It held that since the informant had set the criminal law in motion, he is vitally interested in the result of the investigation. So the law required that the action taken by the police officer-in-charge on the FIR should be communicated to him and any such report send to Magistrate under 173(2)(i) should also be given to the informant. It follows from this that if the Magistrate does not find enough evidence to take cognizance of the case [25] after the filing of police report and it decides to close the case then information of such closure has to be intimated to the informant. From the above discussion, I mention the changes the Judiciary has tried to bring about through its decisions – Guidelines have been given for rape cases Power to apply for cancellation bail has been given to the victim The victim can now rightfully demand for the police report that is given to the Magistrate and if the Magistrate closes the case then he has to inform the victim. The valiant effort made by the courts to increase the role of the victim in the criminal justice system by interpreting clauses of the CRPC to favour it is still not enough. There is a lot that has to be done. These decisions have been mentioned to highlight that the judiciary has only limited power.

The Constitution has only given it the power to interpret laws. The power to frame laws is not with the Judiciary. If there are no provisions that favour the victim, then the Judiciary cannot interpret the contrary. My point is that if the Legislature does not pass laws that can grant rights to the victim, then what the court said in the Ramachandra Rao case might someday become true.

One cannot even rule out the possibility that perhaps it already has! That the failure of the Legislature has already led to birth of criminals from the injustice done to them. There have been various recommendations made for assisting the Legislature in this regard. The 152nd Law commission report suggested the introduction of section 357-A. It laid down the amount of compensation that could be given to the victim at the time of sentencing the accused. It said that- Rs 25000 be given in the case of bodily injury not amounting to death Rs 100000 be given in the case of death [26] The 154th law commission report [27] also suggested incorporation of Section 357 A by providing a comprehensive scheme of payment of compensation for all victims fairly and adequately by courts. The heads of compensation suggested were Injury Loss/ Damage to property of claimant which occurred in course of his/her sustaining injury In case of death from injury resulting in loss of support to defendants The Malimath Committee Report made a lot of suggestions to ensure justice to the victims.

They are extremely important. It said – That the legal representative of the victim had the right to be impleaded in every criminal proceeding where the offence was punishable with 7 years or more In few selected cases notified by the government and with permission of the court, voluntary organizations could have a right to implead in court proceedings The victim had right to get lawyer of his choice and if he could not represent himself then it was the duty of the State to provide one. [28] The committee also gave suggestions as to how the victim’s participation could increase the criminal trial. It said that the victim be allowed to- Produce evidence, oral or documentary with leave of the Court and seek directions for production of such evidence Ask questions to the witnesses or to suggest to the court which may be put as witnesses Know the status of the investigation and to move the court to issue directions for further to the investigation on certain matters or to a supervisory officer to ensure effective and proper investigation to assist in the search for truth. Be heard in respect of the grant or cancellation of bail Be heard whenever prosecution seeks to withdraw and to offer to continue the prosecution Advance arguments after the prosecutor has submitted arguments Participate in negotiations leading to settlement of compoundable offences. [29] Some other suggestions made by it were that- The victim shall have a right to prefer an appeal against any adverse order passed by the court acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such a court. Legal services to victims in select crimes may be extended to include psychiatric and medical help, interim compensation and protection against secondary victimization. [30] The Malimath Committee even talked about compensation Victim compensation is a State obligation in all serious crimes, whether the offender is apprehended or not, convicted or acquitted. This is to be organized in a 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 possibility by the Legal Services Authority. The law should provide for the scale of compensation in different offences for the guidance of the Court. It may specify offences in which compensation may not be granted and conditions under which it may be awarded or withdrawn. [31] So did the Legislature do anything? The Legislature passed the 2008 Crpc amendment act. This act- Recognized the victim by suggesting the inclusion of proviso Section 2(w) which defined the victim. Also introduced the proviso to section 24(8) which talks about Special Public Prosecutors.

According to this proviso, the victim could now appoint a lawyer of his own choice to assist in the case A new section 357-A was also introduced. It talked of a victim compensation scheme. It said that compensation could be provided to victims or his dependents who had suffered loss or injury as a result of the crime. It could also be provided to those who required rehabilitation. The decision to decide the quantum of compensation was to be with the District Legal Service Authority or the State Legal Service Authority. The trial Court could also grant compensation if it felt that it was not enough. It could also do so when acquittal had taken place and victim needed to be rehabilitated. If the accused could not be traced and no trial was taking place then the victims could own their own ask for compensation by application to the State or District Legal Service Authority. The authority had to give such compensation within 2 months after making its enquiry. The State or District legal service authority had been given the power to provide interim relief to the victim such as medical assistance etc. A proviso to section 372 was suggested that allowed the victim the right to appeal against a court decision if The accused was acquitted He was convicted for a lesser offence If inadequate compensation was given The suggestions made by the amendment are indeed a big step towards providing justice to the victim, however, they are inadequate.

With all the debate that has revolved around greater victim participation there was more expected from the Legislature. There are two questions that I have with respect to the amendment- Even if the victim is allowed to appoint its own lawyer under Section 24(8), its relation with the public prosecutor appointed for the case has yet been left undefined.

The problem that existed in this area was that even if such lawyer could be appointed, he had to perform as per the directions the public prosecutor. [32] This problem has not been rectified. The compensation procedure is indeed remarkable. But there is one flaw- if the victim makes an application for compensation to the District Legal Service Authority or the State Legal Service Authority and if they do not complete the inquiry within 2 months and do not give him compensation, then what? No appellate tribunal has been given. The answer would be to go the court, I guess.

But then my only question is- Would all victims be in a financial position to proceed with a case against these authorities? There are a few more things that should have been included in the amendment and have not been. I shall mention them all in my conclusion where I shall also comment what all is still left to be done to provide justice to the victim. CONCLUSION The 2008 Crpc amendment has not properly addressed the needs of the victim. There is much more that had to be included in it. One of the most important areas that needed change in the present criminal justice system was the inability of the victim to participate in the trial. This was not addressed by the amendment. Malimath Committee had made good suggestions on it with respect to it [33] and they were simply ignored. The other suggestions of the committee with respect to allowing the victim’s legal representative, voluntary organization to implead cases were also ignored. I reiterate that if justice has to be done to the victims of our criminal justice system then first and foremost, the victim’s participation in the trial has to increase.

The suggestions of the Malimath committee have to be incorporated. The following should also be included within the victim’s power in the trial- Taking victim’s view with respect to framing of charge and passing order of charge Hearing victim when quantum of sentence is awarded to accused [34] Along with this – Protection of Section 160 [35] CRPC should be extended to suspects Provision for in camera trials should be made especially when the victim is a child Legal aid should be provided to the victim Some provisions should be made to protect the victim from intimidation Provisions for proper rehabilitation of rape victims should also be made [36] As can be seen a lot still has to be done. And it should start by first formally enacting the 2008 Crpc amendment which yet hasn’t been enacted.

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