The honourable Supreme Court of India in HAJI ABDUL GANI KHAN & ANR. V UNION OF INDIA & ORS. on Monday 13th of January, 2023 observed that “A Constitutional Court cannot casually interfere with legislation made by a competent Legislature” while dismissing the writ petition filed under Article 32 of the Constitution of India.
FACTS
The legality of the action of forming a Delimitation Commission for the rearrangement of constituencies in the Union territories of Jammu & Kashmir and Ladakh was challenged. On 5th of August, 2019 a Presidential Order was issued under the powers provided in clause (1) of Article 370 of the Indian Constitution with the objective of application of the Constitution along with its amendments in the state of Jammu & Kashmir. Application of all provisions of Article 370 was discontinued by a subsequent Presidential declaration.
PETITIONER’S CONTENTION
The petitioners’ primary objection was to the increased number of Assembly seats and the subsequent challenge was that the constitution of the Delimitation Commission was in complete violation of the order passed by the Election Commission of India in 2008 (Delimitation of Parliamentary and Assembly Constituencies Order,2008). The petitioners mainly relied on Article 170 of the Indian Constitution which restrained any rearrangement of assembly seats before the first census after the year 2026. Certain other violations by Articles 330,332, 82 and 83 have also contended which may be read in the original judgment but the essential focus was on the violation of the jurisdiction of the Election Commission of India due to the noncompliance with the order of 2008. Further, sections 59 to 63 were also challenged on the ground of contradiction.
RESPONDENT’S CONTENTION
The Union of India represented by the learned Solicitor General highlighted the delay since the delimitation order had already been passed and the said order of the Delimitation Commission was operative from 20th March 2022 and that such an order by a Delimitation commission stands beyond the purview of court’s review jurisdiction according to Section 10 (2). The validity of sections 60 and 62 was highlighted because the Election Commission had already notified the Government of India of the non-necessity of its interference with the rearrangement of constituencies since the same had already been directed to the Delimitation Commission by a letter proving the sections’ non-contradictory nature.
COURT’S CONSIDERATION
The honourable Supreme Court observed a lack of specificity of allegations and since the grounds on which the said Act’s constitutionality may be verified is not mentioned, it fell short of gaining an in-depth reply from the respondent as well as it did not provide the honourable court with enough room for a constitutionality check. The honourable court denied the validity check of the J&K Reorganisation Act and the Presidential Order of 2019 since they were not at all challenged by the petitioners. The Supreme Court observed the legislative action of constituting the Delimitation Commission in compliance with Articles 3, 4 and 239A and pointed out that the argument on Article 170 does not stand since it dealt with the Legislature of a State and not a Union territory. Applying similar legal analogies the sections 60 and 62 of the J&K Reorganisation Act, the apex court completely refuted the question of legality raised about the exercise of delimitation conducted by the Delimitation Commission. On the question of the legality of the Order of 6th March 2020 the apex court weighed on the fact that statutory interpretation must be by the legislative intent and that a practical approach must be adopted to “make it workable”.
JUDGMENT
Considering all other legal points and dogmas the apex court stated that the petition lacked merits and that it was a ‘vague attempt’ to portray the exercise of delimitation as an illegal affair. Pointing out the non-bearing of this judgment’s observations on other matters which are subject to judicial scrutiny, the court intentionally refrained from weighing on the validity of the exercise of Parliamentary powers and dismissed this petition.
The State of Haryana has filed the current appeals because it feels wronged and unsatisfied by the impugned common judgment and order dated 18.10.2019 issued by the High Court of Punjab and Haryana in Chandigarh, which increased the amount of compensation for the lands acquired at Rs. 2,98,54,720/- per acre with all other statutory benefits and allowed the said first appeals in part preferred by the original land owners.
FACTS:
Under the terms of the Property Acquisition Act of 1894, a substantial portion of land in the village of Kherki, Majra, measuring roughly 58 acres, was purchased for public use. The awards were made public by the land acquisition officer. The original landowners requested that references be made under Section 18 of the Act of 1894. The reference court increased the compensation for the notification dated 13.01.2010 from Rs. 60 lakhs per acre as awarded by the land acquisition officer to Rs. 1,56,24,000/per acre. The State’s appeals against the decision and award rendered by the reference court, which set the compensation at Rs. 1,56,24,000, were ultimately dismissed.
But by the impugned judgment and order, which considered the compensation amount increased by the High Court and modified by this Court to Rs. 2,38,00,000/per acre concerning the lands acquired in January 2008 and granted a 12% cumulative increase, the High Court has partially allowed the appeals raised by the landowners and determined and awarded the compensation at Rs. 2,98,54,720. The State of Haryana has filed the current appeals because it is unhappy with the impugned decision and order made by the High Court that determined and awarded compensation for the lands acquired via a notification dated 13.01.2010 at Rs. 2,98,54,720 per acre.
PLAINTIFF CONTENTION:
While calculating the compensation at Rs. 2,98,54,720/- per acre for the lands acquired via a notification dated 13.01.2010, Shri Nikhil Goel, learned AAG, appearing on behalf of the State, has vehemently argued that the High Court materially erred by considering and/or relying upon the judgment of this Court [State of Haryana vs. Ram Chander (2017 SCC Online SC 1869)]concerning the lands acquired.
It is argued that this Court clearly said in the decision and order it issued that the compensation figure of Rs. 2,38,00,000 per acre established by the judgment shall not be regarded as precedent in any other case. Considering this, it is argued that the High Court committed a grave error by considering the sum awarded by this Court in the decision and order given at a value of Rs. 2,38,00,000.
Furthermore, it is argued that prices for the lands were artificially raised because, concerning the community specifically, lands started to be acquired starting in 2008. Therefore, it is claimed, the High Court erred significantly by increasing the award price of Rs. 2,38,00,000 per acre by 12% for the notification of 25.01.2008.
DEFENDANT’S CONTENTION:
The learned attorney representing the landowners has argued that after the State’s appeals were rejected and the impugned common judgment and order were issued in the landowners’ appeals, the State is no longer permitted to contest the impugned common judgment and order issued by the High Court.
Further, it is argued that there was a price increase even after considering the sale instances that were provided on record from 09.03.2007 to 31.03.2008; as a result, the High Court did not mistake in approving the 12% increase on Rs. 2,38,00/- per acre. It is argued that, as of this point, no conclusive evidence nor a sale instance to the opposite has been recorded by the acquiring authority, demonstrating a decline in market value between 2008 and 2010.
JUDGMENT:
This Court made it clear in the judgment and order that it should not be regarded as a precedent. It must be observed, however, that even on the merits, this Court considered and approved the sale cases presented on behalf of the landowners between 2007 and 2008. Because the compensation amount of Rs. 2,38,00,000/- per acre for the land acquired through a notification issued on January 25, 2008,can be considered the base and the time interval between the 2008 notification and the 2010 notification, a suitable enhancement of 8% to 15% is given, which is held in the case of [Pehlad Ram Vs. HUDA; (2014) 14 SCC 778]
It will not be safe or wise to grant the cumulative increase of 12% nonetheless, especially because the purchase processes in the current case were just started in January 2008 concerning the exact hamlet. Considering the facts and circumstances of the case, as well as the sale cases that have been presented on the record, we believe that accepting a 10% increase above the original amount of Rs. 2,38,00,000 can be considered just compensation and may further the interests of justice. The market value of the land in question for the lands acquired via a notification dated 13.01.2010 will be Rs. 2,87,98,000/- per acre considering this situation. The current appeals are partially granted to the degree, and it is decided that the original landowners are entitled to compensation at a rate of Rs. 2,87,98,000 per acre together with any additional legal advantages that may be provided by the Land Acquisition Act, of 1894.
Bombay High Court on Monday i.e. 13th February 2023, granted relief to the petitioner in M/s. Lifeline Medical & General Stores Chemist and Drugs v. Assistant Municipal Commissioner Food & Drugs Administration & Licensing Authority, Maharashtra State.
Facts:
The petitioner being a chemist carries a business of General Stores of Chemist and Drugs (Medial Store/Shop) for the last 17 years and has a valid licence for the same which is renewed from time to time. On 8th June 2018, the Drug inspector of Raigar visited the shop for an inspection. An inspection report was prepared after which a show cause notice was issued in July under the Drugs and Cosmetics Act, 1940 and Rules, 1945, alleging the petitioner has violated Rules 65(2), 65(3)(1), 65(6), 65(4)(i), 65(4)(3), 65(4)(4), 65(4)(4)(ii) of the said Act. The petitioner filed for a reply but his licence was cancelled on the last date of the month. Filed an appeal before the appellate authority which had put a stay on the order. But on 26.02.2022, the appeal was partly allowed and the licence was suspended for 90 days. And hence the present appeal was filed.
Petitioner’s contentions:
Mr Kumbhar, learned counsel, stated that the orders passed by the authority are against the principles of natural justice. The provisions and exceptions of the said Act have not been considered by the respondent before passing the orders. The Petitioner has been carrying the business for the past 17 years with a valid licence and no allegations have been on record against him. Also, a reply was filed for the show cause notice and it was clearly stated that no such violations will happen in future. The petition against the order passed in 2022 is still pending before the authority and the petitioner has been suffering because of the suspension since January 2023.
Respondent’s contentions:
Mr Sawant, who learned AGP for the state, claimed that the petitioner has been carrying his business for the past 17 years without blemish and a valid licence which has been renewed from time to time. But the report made by the Inspector shows that certain drugs were sold with valid bills when the owner, Pharmacist Mr Mustafa Hanif Sirkot was not present. It was also alleged that the bills of the same were not shown to the inspector. Two day time was given to produce the bill before the authority resulting in there being some discrepancy found in the dates of the bills. The show cause notice was issued in violation of section 18(c) of the said Act and the petitioner was asked to reply within 5 days.
The reply stated that the said drugs were sold in presence of the owner, Mr Mustafa, the discrepancy found in the hills was due to the inadvertent mistake of Mr Mustafa, who by mistake forgot to mention a few dates. The copies of bills of all the informed drugs have been submitted to the Assistant Commissioner. The order of 2018 was passed after due consideration of the facts. The reason for selling drugs without a prescription was that they could be sold at high rates and could also lead to adulteration and the sale of fake drugs. Thus in violation of rule 65 and liable under the provisions of Rule 66(1) and 67(h)(1), the petitioner’s licence was cancelled.
Judgement :
The learned counsel for the petitioner pleaded that the penalty imposed by the impugned order is without any reason harsh. The petitioner has been without any livelihood since 9th January 2023. He has also expressed an unconditional apology for the discrepancy found in the hills of the drugs. He has also given an undertaking to the court that no such mistake or violation shall take place in future. This undertaking has been accepted by the court and the appeal filed by him is allowed stating that he must abide by all the rules and follow all the provisions in respect of the conduct of his business. Hence the impugned order of 2018 and the show cause notice stands quashed.
Criminal Appeal No. 34 of 2015 (Arising out of Special Leave Petition (Crl.) No. 2961 of 2013), Criminal Appeal No. 35 of 2015 (Arising out of Special Leave Petition (Crl.) No. 3161 of 2013) and Criminal Appeal Nos. 36-37 of 2015 (Arising out of Special Leave Petition (Crl.) No. 3326-3327 of 2013)
Citation
AIR 2015 SC 923 or (2015) 4 SCC 609
Forum
Supreme Court of India
Bench
H L Dattu CJI., Madan B Lokur, A K Sikri JJ.
Decided on
January 9, 2015
Introduction
The criminal liability of directors is a core concept in corporate criminal law; it helps regulatory authorities and courts control, prosecute and punish crimes of a corporate nature. Given the artificial nature of companies and corporates, it is the employees and executives of the company that act as its agents. Executives are the ones who take the major decisions on behalf of the company. They can easily control the acts and omissions of the company on a short and long-term basis. Given the enormous controlling power that executives possess, it is vital to have laws, regulations and principles governing the actions of these executives. This ensures that they do not violate the law without fear of repercussions and do not use certain concepts of law to evade punishment.
In the case discussed below, there is a clear explanation of the requirements for holding executives responsible for the acts of their companies, especially in the context of the executives’ names being unlisted in the charge sheet.
Rule of Law decided upon by the Bench
The rule of law in this case is: Section 120-B of the Indian Penal Code, 1860, read with Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988.
Facts & Procedural History of the case
The central allegation, in this case, was regarding the 2G spectrum case. An additional spectrum that was beyond the usual spectrum that the Telecom Ministry approves. This approval of an additional spectrum was done with a 1% additional revenue share. Multiple cases had been registered, coupled with investigations by authorities. This transaction caused losses to Government Revenue. It was alleged in multiple investigations that this plan resulted from a conspiracy between Mr Ghosh, the then Telecom Minister and certain Cellular Operators.
The case in question is an appeal against an impugned order by a Special Judge, which had issued a summons to the accused in a charge sheet. This order, passed in March 2013, mentioned that the Special Judge was satisfied with the incriminating material recorded so that a summons could be issued against the accused. The Special Judge also stated that the summons was being issued to three executives – Mr Sunil Mittal of Bharti Cellular Ltd., Mr Asim Ghosh of Hutchison Max Telecom Ltd., and Mr Ravi Ruia of Sterling Cellular Ltd.
The Special Judge went on to specify the doctrine of ‘alter ego’ and applied the same to this case. He held that these executives (the appellants in the case) are the alter ego of their companies. So through vicarious liability, they shall be prosecuted for the crimes of their companies. It is pertinent to note that the Special Judge mentioned that their state of mind is the companies’ state of mind, and any acts of the companies shall be attributed to them. Notably, he had not mentioned the reasons for issuing an order of summons to the three executives.
The order was sought to be challenged by two of the three executives, to the extent of the order implicating them as the accused.
Issues raised in the Court of law
A singular issue was raised. However, the Court opined on a variety of topics concerning the issue below:
Is the impugned order of the Special Judge, which stated that the Appellants were not named in the charge sheet, valid in law?
The decision of the Court on the issues drafted
The Court decided that the order must be set aside, given the ambiguity in the impugned order and the wrongful application of a principle to the issue at hand. They had also mentioned clearly that they were not stating that the executives were free of guilt; they merely quashed the impugned order. It is up to the Special Judge to review the incriminating material again and issue fresh summons to the Appellants. Based on the evidence uncovered, the Special Judge may apply Section 319 of the Indian Penal Code, 1860, to include the Appellants in the proceedings to prosecute them further.
Analysis of the judgement
The judgement, which Justice A K Sikri wrote, was systematic in its breakdown of the facts and circumstances of the case, along with an analysis of the principle of alter ego and criticism of its application in the present case.
Initially, the counsel for the Appellants contended that the impugned order was erroneous in two parts. The first three paragraphs of the order are regarding Mr Ghosh and the cellular companies involved. The Special Judge had perused all the documents submitted on record to conclude that these accused persons can be further proceeded against. In paragraph four, the Judge detailed the principle of alter ego and stated that the executives of the three cellular companies were responsible for the acts of their respective companies. The Judge had connected these paragraphs to conclude that the three executives (two of whom are appellants) must be issued a summons. Explaining all this, Senior Advocate Salve (counsel for the Appellant) stated that the Judge’s order was erroneous and did not hold good in law.
Continuing, he detailed that the doctrine of ‘alter ego’ has been applied in reverse and that the companies were accused first rather than the directors. For the doctrine to apply, the directors must be held guilty, and so they shall be deemed guilty for the acts of the corporate body. Only when the principle is correctly applied can the agency mode of liability also be applied. For the same, he relied on Iridium India Telecom Ltd. v. Motorola Inc.1, Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd.2, and Aneeta Hada v. Godfather Travels and Tours Ltd.3, which are all landmark judgements by the Supreme Court of India.
Sr. Adv. Salve closed his arguments by pointing out that the CBI had investigated and concluded that there was no information or submitted material to implicate the Appellant.
Other counsels for the Appellants seconded these arguments and mentioned that some of the appellants were not mentioned in the charge sheet in the first place.
In terms of the arguments for the respondents, Senior Counsel K K Venugopal refuted the appellants’ submissions by bringing to the forefront the reasoning behind the decision to implicate the appellants. He stated that once companies are charged with mens rea offences, they need to be punished for the same, and the only way to do that is to punish their Directors or Officers. He then pointed out the actions of these executives on behalf of their companies, which had resulted in the 2G Scam. In a nutshell, Sr. Adv. Venugopal has reinforced the human agency doctrine and stated that, despite the omission of appellants’ names in the charge sheet, the Special Judge had powers to make an order such as the one in question.
In support of his arguments, the cases of M C Mehta v. Union of India (Taj Corridor Scam)4, Kishun Singh v. State of Bihar5 and Dharam Pal v. State of Haryana6 were used.
In a rejoinder, counsel for the Appellant, Mr Fali Nariman, argued that for vicarious liability to be applied, there is a need for a statutory provision or something to be imputed. Therefore, the Special Judge has wrongfully applied the principle of alter ego.
After listening to the extensive arguments and contentions of the parties, the Court began examining the order and applying the principle of alter ego.
The Bench refused to discuss the comments made by the appellants concerning the 2G scam itself, making it clear that the matter is beyond the scope of their appeals.
Firstly, the impugned order was dissected. At the outset, the Court admitted the trial courts could issue that summons to persons not mentioned as accused in the charge sheet. The only requirement is that there must be sufficient incriminating material on record to empower the Judge to issue a summons. The question, in this case, is not about the incriminating material; instead, it is about the lack of a convincing reason behind the Judge’s decision to issue a summons. The Judge has not clearly stated why he had decided to implicate the three executives as accused and issue summons. He had merely stated that the executives were or are in control of their company’s affairs – this makes them the mind and will of the companies and that this makes them the alter ego of their companies.
Secondly, the doctrine of alter ego was dealt with. The Court reiterated a landmark Judgement from 2005 – Standard Chartered v. Directorate of Enforcement7, and explained that the Bench, in that case, opined that companies could be prosecuted and punished for offences with mandatory imprisonment. Then, the Iridium Infra case was discussed, wherein the same subject was discussed, with the addition of mens rea element. The judgement held that the criminal intent would be imputed to the corporate body. That is to say, the group of people controlling the company must have criminal intent, which will implicate the company to have criminal intent and therefore be punished.
In the case at hand, the company was first held guilty of criminal intent, following which the executives were held to have criminal intent. The Special Judge had applied the principle in reverse – the company’s criminal intent had been established first, and then its executives were implicated. Thus, applying this principle in this manner makes it erroneous to apply the theory of vicarious liability to the case.
Thirdly, the Court discussed the circumstances when the company is accused, and its executives can also be prosecuted. It is mainly concerning intent that the decision is made. There must be sufficient evidence for the same. In other cases, the statute in question must refer to the vicarious liability of the company’s executives. Cases discussed included Jethsur Surangbhai v. State of Gujarat.8, Sham Sunder v. State of Haryana9, Hira Lal Hari Lal Bhagwati v. CBI10 and Sharon Michael v. State of TN11 among others.
Based on these discussions, the Court concluded that the Special Judge had used an inaccurate principle of law. It is essential to the case that the Judge mention the reasons for his satisfaction with the incriminating material. However, the Judge failed to do the same.
After making a brief statement on the powers of the Special Judge to issue summons when the accused is not on the charge sheet, the Court went on to conclude its analysis of the case. They held the impugned order invalid in law as the Special Judge failed to adequately explain the reasons or grounds behind his act of proceeding with the case by issuing a summons. Therefore, the impugned order was quashed and set aside, and the appeal was allowed. However, the Special Judge does have the power to revisit the case, review the documents, and prepare a fresh order that lists the reasons for the satisfaction of incriminating material clearly and in a prima facie manner.
Conclusion
As seen from the case analysis above, Judges and legal professionals must be careful in their acts and omissions, as an error may lead to the entire proceedings being vitiated. While everything else on the part of the Special Judge’s order was abiding by the law, two points left the entire order of a significant financial scandal quashed. Therefore, it is vital that essential points are included in documents and that the law is followed to a T.
On the other hand, it is equally essential to ensure that executives of companies do not evade punishment on procedural or theoretical grounds. In order to recover money from white-collar crimes, theories of vicarious liability should be prudently applied in relevant circumstances.
Citations
Iridium India Telecom Ltd. v. Motorola Inc., (2011) 1 SCC 74 (India)
Maharashtra State Electricity Distribution Co. Ltd. v. Datar Switchgear Ltd., (2010) 10 SCC 479 (India)
Aneeta Hada v. Godfather Travels and Tours Ltd., (2012) 5 SCC 661 (India)
M C Mehta v. Union of India, (2007) 1 SCC 110 (India)
Kishun Singh v. State of Bihar, (1993) 2 SCC 16 (India)
Dharam Pal v. State of Haryana, (2014) 3 SCC 306 (India)
Standard Chartered v. Directorate of Enforcement, (2005) 4 SCC 530 (India)
Jethsur Surangbhai v. State of Gujarat, (1984) Supp. SCC 207 (India)
Sham Sunder v. State of Haryana, (1989) 4 SCC 630 (India)
Hira Lal Hari Lal Bhagwati v. CBI, (2003) 5 SCC 257 (India)
Sharon Michael v. State of TN, (2009) 3 SCC 375 (India)
This case analysis is authored by Vibha Chinni Krishnan, a student of Symbiosis Law School, Hyderabad.
This article has been written by Nashrah Fatma, a third-year law student at the Faculty of Law, Jamia Millia Islamia. This article aims to discuss the various aspects of victim restoration under Indian law.
Crime affects a large number of people. It is a violation of interpersonal relationships. The criminals or perpetrators are punished for their criminal acts but the plight of the sufferers or victims of the crime cannot be ignored. Victimization refers to any form of pain endured by the victim of a crime experienced by a victim of an assault. When a victim reports a crime, law enforcement acts, and the victim’s journey through the criminal justice system begins. The trauma may worsen due to all these procedures in the criminal justice system, and re-victimization may also play a role. Victimology is the study of victimization, which includes a scientific analysis of the connection between the victim’s physical and psychological distress and the crime.
Benjamin Mendelsohn, a criminologist, is credited with being the first to use the term “victimology”. Between the 1940s and 1950s, he and his colleague Hans von Hentig examined victimology with a focus on what types of behaviours or qualities the victim exhibited that drew the attention of the offender and resulted in the victimization. They are regarded as the “Father of Victimology Study.”
Von Henting examined homicide victims and found that they were more likely to be of the “depressive type”, who were easy prey for criminals. Following this approach, another victimologist postulated that “many victims precipitate homicide was in reality caused by the unconscious inclinations of the victims to commit suicide”.
The criminal justice system has largely ignored the victims of crime, despite the fact that they frequently get support and help from their families, tribe, or community. Only recently have criminal law jurisdictions come to the realization that victims must be treated with empathy and that their basic rights and dignity must be safeguarded.
The scientific study of victimization, including the interactions between victims and offenders, the criminal justice system, the police, courts, correctional personnel, and victims, can be roughly referred to as victimology. However, the study of victimology is not just defined by these relations but also by other forms of human rights violations that are not necessarily crimes.
ORIGIN AND DEVELOPMENT OF VICTIMOLOGY IN INDIA
The goal of the criminal justice system in India during the early Vedic era was not only to punish offenders but also to make amends for the victims. Throughout the Mughal and British periods of Indian history, the focus was more on punishing perpetrators than providing victims with compensation. The only things the criminal justice system cared about were guiding offenders and attempting to change them. However, since the 1980s, and mainly as a result of legal action, the protection of victims has garnered more attention.[1]
WHO IS A VICTIM?
The victim as defined by Section 2(wa) of the Code of Criminal Procedure is as follows: ‘Victim’ refers to 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 victim includes his or her guardian or legal heirs. The concept of victim includes any person who experiences an injury, loss, or hardship due to any cause.[2]
The primary victims are those who are most directly impacted by the offence, but there are also other victims, including witnesses, members of the affected community, and family members of both the victims and the offenders. It is imperative to address the relationships that were impacted by the crime. Responses to the variety of needs and damages felt by victims, offenders, and the community constitute restoration.
COMPENSATION TO VICTIMS
Traditionally, compensation was awarded according to the principle “Ubi remedium ibi jus” (where there is a remedy, there is a right principle. Criminal law was not a concept in any prehistoric culture. Every crime, including murder, might be made up for financially. Every crime was, in fact, a civil wrong rather than an offence against society as a whole. The phrase “Ubi Jus ibi remedium” -where there is a right, there is a remedy” holds true in the present times. The idea of compensation nowadays is that no one should go without compensation.[3]
There are some general and specialized laws with provisions relating to compensatory relief in India.
Sections 357 (1) and (2) of Cr.P.C. empower the trial court to award compensation to the victims of crime. The compensation provided in S. 357(1) includes costs, damage, or injury, suffered or loss caused due to death or monetary loss incurred due to theft or destruction of property, etc. Similarly, Sec.357-A is inserted by Amendment Act 2008 in Cr.P.C. and it provides a scheme relating to victim compensation. Accordingly, every State Government is required to prepare a scheme for providing funds for the purpose of payment of compensation to a victim or his dependent who has suffered any loss or injury due to the crime.
The current criminal justice system is predicated on the idea that the conviction of the offender is sufficient to recognize the rights of a crime victim. The Ministry of Home Affairs Committee on Reforms of the Criminal Justice System, chaired by Justice Dr. V.S. Malimath, recognized “justice to victims” as one of the core principles of Indian criminal law in its Report presented to the Government of India in March 2003. By permitting, among other things, involvement in criminal processes as well as compensation for any loss or injury, it suggests a comprehensive justice system for the victims.
Victimology was not formally acknowledged as a branch of criminology until the 1970s. The founding of the World Society of Victimology by criminologist Hans Schneider in 1979 was one of the significant turning points in the history of victimology. It is presently a nongovernmental, nonprofit organization with Special Category consultative status with the Council of Europe and the Economic and Social Council (ECOSOC) of the United Nations.[4]
As the word implies, victimology is the study of victims. The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, defines a “victim of crime” as a person or group of persons who have been harmed, individually or collectively, by acts or omissions that violate criminal laws in effect within the Member States, including those laws proscribing criminal abuse of power.[5]
VICTIM RIGHTS AND VICTIMOLOGY IN INDIA
Victims’ rights have been given recognition by the Indian Criminal Jurisprudence. By submitting an F.I.R. under Section 154 of the Code of Criminal Procedure or a complaint before the Magistrate under Section 200, the victim or any other person initiates the legal process. The victim has the right to be present at every process, including the bail application, the investigation, the inquiry, the trial, and any future sentencing or parole hearings. It recognizes the harm done to the victim as well as his interest.
When an F.I.R. is filed, the police launch an investigation. However, the police cannot begin an investigation if there is a report of an offence that is not cognizable without the consent of a magistrate who has the power to try the case or commit it for trial. The office in charge of the Police Station need not go in person or appoint a subordinate officer to conduct an inquiry immediately in the case of a cognizable offence when the information is presented against any person by name and the situation is not serious. Officer-in-Charge of the Police Station shall not examine the case if it appears that there is insufficient justification for opening an investigation.
Additionally, the option to complain to the Magistrate has been provided. A magistrate who receives a complaint about an offence must examine the complainant and any present witnesses.
RIGHT OF PRIVACY OF RAPE VICTIMS
In numerous instances, the privacy of the victims is infringed. Their name or place of residence is made public which may cause them to suffer even after restoration or rehabilitation. The Supreme Court, in Raja Gopal’s case,[6] observed that a citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing, education, etc. because the right to privacy is inherent in the right to life and liberty guaranteed under Article 21 of the Constitution. However, despite the fact that the CrPC specifically states that rape cases must be tried in secrecy, the privacy of the victim is breached throughout a criminal prosecution. In Gurmeet Singh’s case, the Supreme Court was forced to reiterate the law as it is stated in Section 327 of the CrPC.[7]
A victim may be authorized to instruct a pleader as a prosecutor in any Court pursuant to Section 301(2). In such a case, the prosecution will be handled by the public prosecutor or assistant public prosecutor in charge of the case. Section 12 of The National Legal Service Authority Act, of 1987 reinforced the idea of free legal aid. It provides that every person who has to file or defend a case shall be entitled to legal services under this Act if that person is a Scheduled Caste or Scheduled Tribe member, a woman, a child, a person who is mentally ill or otherwise disabled, an industrial worker, a victim of a major disaster, or a person in custody of a protective home as defined by clause (g) of Section 2 of the Immoral Traffic (Prevention) Act, 1956 and people whose annual income is less than Rs. 9,000 or another higher amount that may be prescribed by the State Government if the case is before a court other than the Supreme Court, and less than Rs. 12,000 or another higher amount that may be prescribed by the Central Government if the case is before the Supreme Court.[8]
In the State of Himachal Pradesh v. Prem Singh,[9] the Supreme Court has held that the delay in lodging F.I.R. in a case of sexual assault cannot be equated with a case involving other offences. There are several matters that weigh the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint and in such cases of sexual assault, the victim’s psychological and mental torment should definitely be considered.
In India, the higher courts have traditionally taken great care to ensure that victims of crime receive compensation. Since the Supreme Court’s formation, the first instance in which a person received monetary compensation for the violation of one of his or her fundamental rights was the case of Ruddal Shah v. State of Bihar[10] that a person is entitled to compensation for the loss or injury caused by the offence, and this includes the victim’s wife, spouse, parents, and children. The ruling, in this case, is a landmark one since it sparked the development of compensatory jurisprudence for constitutionally protected fundamental rights violations. It is significant in this regard that this verdict was based on the Court’s interpretation of the Indian Constitution and that there is no clear provision in the text of the Indian Constitution for awarding compensation and that this judgment was on the basis of the Court’s interpretation of the extent of its remedial powers.
In the case of Bhim Singh v. State of Jammu & Kashmir,[11] the court ordered a compensation of Rs. 50,000 to the petitioner, a member of the Legislative Assembly, for the violation of his legal and constitutional rights after finding that he was maliciously and deliberately detained and arrested by the police in order to prevent him from attending the assembly session. The court observed that the malicious intention of the arrest and detention is not washed away by his later release.
The victim or his family cannot be neglected by the court in its efforts to uphold and defend the human rights of the convict if the victim dies or becomes otherwise unable to support himself as a result of the convict’s criminal act. The victim is certainly entitled to reparation, restitution, and safeguarding of his rights. In the criminal justice system, a victim of a crime cannot be ignored. He has endured the most hardship. His family is completely destroyed, especially in the event of death or severe physical harm. This is in addition to considerations like humiliation and reputational damage. An honour that is lost or a life that is snuffed out cannot be recompensed but then monetary compensation will at least provide some solace. This was observed in the case of the State of Gujarat v. Hon’ble High Court of Gujarat.[12]
For a variety of reasons, witnesses and victims of crime are hesitant to cooperate with the criminal justice system and actively participate in court procedures. When called to the police station for questioning, witnesses are scarcely ever treated with respect. Additionally, they do not receive any compensation in the form of TA and DA reimbursement, as required by section 160(2) of the CrPC. The court’s repeated adjournments of cases, the subordinate courts’ lack of basic amenities, and the failure to pay TA and DA for witnesses’ attendance in court all cause a significant amount of difficulty for the witnesses. The prosecution would brand the witnesses hostile for not backing the statement recorded by the IO or the overzealous defence attorney would browbeat them for being questioned after a long interval of 5 to 10 years after the incident.
The limitation of the aforementioned legal provisions is that when the accused is exonerated of the allegation, which occurs in roughly 93% of instances in India, compensation cannot be granted by the court. The United Nations General Assembly has advised states to compensate crime victims when the criminal or other sources are unable to provide it in full. The urgent needs of crime victims are not being addressed by Indian legislators. Despite being required to comply with the terms and conditions of the International Covenant to Protect Human Rights and Fundamental Freedoms, India has not passed any legislation to provide compensation to the victims when the accused is found not guilty by a criminal court. As a result, the victims of racial strife, dacoity, arson, rape, etc. are not receiving any recompense.[13]
CONCLUSION
The study of victims in the contemporary criminal justice system and providing restoration remains the sole focus of mainstream victimology. This emphasis has affected how crime is measured and the role that victims play in addition to increasing awareness and understanding of crime victims. Additionally, society as a whole is morally responsible for the crime because it is a result of some unfavourable socioeconomic conditions. If the State fails to eliminate certain issues from society, it must provide compensation.
Organized crimes, such as drug trafficking, shootings, money laundering, extortion and murder for rent, fraud, and people trafficking, in particular, are rapidly raising the crime rate in India. A survey indicates that every two minutes, a crime against a woman is reported in India. The data emphasize how vital it is to create effective law and order in the country and suitable victim compensation mechanisms.
References
L. D. Dabhade & N. A. Qadri, Present Scenario of Contempt and Development of Victimology in India, 2 IJRSSIS 61-64 (2015).
Ibid.
Ibid.
Ibid.
Ibid.
(1994) 6 S.C.C. 632 (India).
(1996) 2 S.C.C. 384 (India).
Ibid.
2009 Cr LJ 789 (S.C.).
(1983) 4 S.C.C. 141 (India).
(1985) 4 S.C.C. 677 (India).
(1998) 7 S.C.C. 392 (India).
R K Bag, Perspectives in Victimology in Context of Criminal Justice System, 41 JILI 78 (1999).
DMD is a merger of two established law firms: Dutt & Menon in New Delhi and Dunmorr Sett in Mumbai. It has successfully represented clients on corporate transactions, tax, intellectual property and litigation matters for 35 years. The Firm services its clients through its offices in New Delhi & Mumbai. Additionally, the Firm has a presence through its associated offices in Bangalore, Chennai, Cochin and Bhubaneshwar. DMD has expertise in a diverse spectrum of transactional, tax and litigation work globally.
Position and Experience
Associate – Competition Law with PQE 1 to 3 years
Roles and Responsibilities
The candidate will be involved in both advisory and enforcement work.
Combinations (i.e., M&A, PE and JV) related work. Mix of filings and notifiability analysis.
Basic working knowledge of cartels, abuse of dominance and – distribution agreements.
Ability or willingness to think out of the box and take ownership.
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KSK Advocates & Attorneys is looking for Corporate Associates to join their team in Bangalore.
About the organization
King Stubb & Kasiva is a Corporate Law Firm in India that has established teams in every practice area to ensure our services meet the most exact standards. They have their offices in Bangalore, Chennai, New Delhi, Mumbai, Kochi, Kolkata & Pune. Their Key Practices include Corporate M&A, Private Equity & Venture Capital, Banking & Finance, Real Estate, Dispute Resolution (Arbitration & Litigation), Insolvency, Regulatory and Labour & Employment matters. The Firm also has dedicated practices surrounding Capital Markets, Competition and Anti-trust, Environmental, Food, Information Technology, Infrastructure & Project Finance, IPR, Investment, Legal Metrology, Litigation, Media Law and Tax.
Required Experience
Candidate must have a minimum of 2 years of work experience in handling general corporate advisory and corporate commercial transactions including M&A, Private Equity.
Eligibility
Candidate must be qualified to practice law and must have an LL. B degree;
Candidate must have knowledge of Company Law, FEMA, SEBI, and RBI Regulations, Employment, and Labour Laws;
Candidate must be fluent in both spoken and written English;
Excellent communication skills along with the ability to draft complex agreements and conduct extensive legal research;
Candidate must have strong teamwork abilities, along with the ability to deliver within deadlines;
Must have good exposure and must stay abreast with legal developments;
Ability to proactively identify and discuss technical issues with clients while being mindful of firm risk issues.
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Agarwala Chambers is a boutique firm dealing in litigation and corporate areas of legal practice. The practice is headquartered at NCT of Delhi and has representative offices in other Indian cities such as Allahabad, Nainital, Mumbai, Surat, Hyderabad, and Goa.
Eligibility
Law students currently pursuing 2nd -4th-year law in a 5-year integrated law school/institution wishing to gain experience in the field of legal research and also wanting to have an excellent view of working in the field of corporate law and/or litigation, can apply for this internship.
Desired Skills
Ability to perform Legal Research and Writing, Analyse Case Laws and other Legal Documents
Ability to work with Common Word Processing Software like – MS Word, Google Docs, Powerpoint, etc.
Good command of the English Language and Excellent writing/reading and proofreading skills.
Ability to diligently complete the assigned task in the given time frame.
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Sri Sukhmani College of Law, SSCL intends to provide students with excellent teaching-learning experiences and professional skills through a variety of learning opportunities. The Campus is situated in a calm, peaceful and pollution-free environment, best suited for academic pursuits. Well-equipped Classrooms, Moot-Court, Seminar hall, library, student centre for co-curricular activities, computer lab, academic and administrative blocks and other amenities provide World class facilities and infrastructure creating an ideal environment for learning, evolving and growing. Career counselling and career development programs, interaction with legal experts and Legal Aid Camps and visit to Lok Adalats are regularly organised by the college for providing better exposure to students.
ABOUT THE MOOT COURT
Moot Court Competition is a venue where the analysis, drafting, presentation and arguing skills of an upcoming lawyer are put to test. It helps to objectively assess the facts, apply relevant principles of law and legislation and bring out reasons and arguments to justify one’s stand. It helps in the professional growth that emerges out of such intellectual exercises. It brings together tomorrow’s lawyers who can forge long-lasting relationships in future. Such competitions give a practical orientation to learning.
IMPORTANT DATES
Last date of registration through Google link/Submission of Registration form through Email- 15 February 2023
Submission Of Memorial Through Email by 18 February 2023
Submission of Hardcopies of the Memorial by 21 February 2023
Registration fee per team – Rs 1500 Payment Details are available in the Brochure
WHO CAN PARTICIPATE?
The competition is open to participation by teams of all the students pursuing 3 Year and integrated 5-year LL.B Courses in any law school in India, recognized by the Bar Council of India. There will be only one team participating from one institution. A maximum of 20 teams in all will be allowed to participate. Further rules and regulations of the competition can be checked out below.
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Alternative Dispute Resolution Board (ADRB) Hamdard Institute of Legal Studies & Research (HILSR), School of Law Jamia Hamdard, New Delhi, is organizing the ‘Concordia: National ADR Fest‘ from 17th to 19th March 2023.
About the Institution
Jamia Hamdard (JH) was inaugurated by the then Prime Minister of India, Shri Rajiv Gandhi on August 1, 1989, who in his inspiring inaugural address applauded the efforts of Hakeem Abdul Hameed Saheb, the Founder, for setting up a number of institutions of learning which were finally merged to form a “Deemed to be University” namely Jamia Hamdard. In the words of Shri Rajiv Gandhi, “This will enable the minority to go forward and help India to march forward”.
Hamdard Institute of Legal Studies and Research (HILSR) is one of the departments of Jamia Hamdard. Established in 2018 after approval from the Bar Council of India (BCI), HILSR aims to produce the finest legal professionals for the Bar, Bench and legal academy. Having recently admitted its fifth batch, HILSR currently offers a five-year Integrated B.A., LL.B, and LL.M programs and will start PhD. in law very soon.
Events
National Client Counselling Competition, 2023
National Debate Competition, 2023
National Nukkad Natak Competition, 2023
Eligibility
The competition is open for students pursuing 3-year or 5-year LL.B or LL.M from any University approved by the Bar Council of India. No cross-university team shall be allowed to participate. Only one team per University may register.
Deadline
The last date for registration is 18th February 2023.
Contact information
In case of any queries, please write to adrbhilsr@gmail.com or feel free to contact the following student conveners: –
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