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Victims of Crime- Restoration and Legal Care under Indian Criminal Jurisprudence

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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.

1.INTRODUCTION
2.ORIGIN AND DEVELOPMENT OF VICTIMOLOGY IN INDIA
3.WHO IS A VICTIM?
4.COMPENSATION TO VICTIMS
5.VICTIM RIGHTS AND VICTIMOLOGY IN INDIA
6.RIGHT OF PRIVACY OF RAPE VICTIMS
7.CONCLUSION

INTRODUCTION

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

  1. L. D. Dabhade & N. A. Qadri, Present Scenario of Contempt and Development of Victimology in India, 2 IJRSSIS 61-64 (2015).
  2. Ibid.
  3. Ibid.
  4. Ibid.
  5. Ibid.
  6. (1994) 6 S.C.C. 632 (India).
  7.  (1996) 2 S.C.C. 384 (India).
  8. Ibid.
  9.  2009 Cr LJ 789 (S.C.).
  10. (1983) 4 S.C.C. 141 (India).
  11. (1985) 4 S.C.C. 677 (India).
  12.  (1998) 7 S.C.C. 392 (India).
  13. R K Bag, Perspectives in Victimology in Context of Criminal Justice System, 41 JILI 78 (1999).

Prolonged Delay in Rape Trial

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The present article has been written by Shrey Hasija, a first-year student of Vivekananda Institute of Professional Studies, GGSIPU.

Introduction 

In a society like India where cultural expectations and attitudes toward society determine the type of relations and behavior with people. An incident of rape in that type of society, where a victim looked like some damaged goods instead of giving sympathy to him. Also, the family of victims tends to reject victims due to social pressure. Also reporting this type of crime is considered a daring act on part of both family and victim due to prosecution place the victim has to face embarrassing and uncomfortable line of questioning, which is why the cases of rape are most under-reported crimes in India. A murderer destroys the physical being of a person but rape destroys or deteriorates the mental being of a person and in some extreme cases makes the person insane. Increasing cases of rape and the extreme condition of rape calls for the speedy delivery of justice to the victims and their families, who are suffering from the wrongdoing of someone else who is roaming freely without being punished.

Also, there is a famous saying that ‘justice delayed is justice denied ‘by William Goldstone which means that if timely justice is not given to suffering one then it will lead to injustice. In the case of prolonged delay in the rape trial, there is a classic example which I think everyone in India knows about is Nirbhaya’s Case in which a young girl was gang-raped on a running bus in Delhi, So brutally that she lost her life. Despite that, the case took 7 painful years for justice to be served. The time has come to adopt speedy machinery for providing speedy justice to a rape victim and providing the victim new to live with dignity.

Why does it take so much time to provide justice to the victims?

The unnecessary and undue delay in the rape cases has become a barrier in giving justice to the victim. So delays only increase the pain and suffering of the victim and allows the accused to travel freely. Very large no cases are pending in our courts which make the people doubt the judicial system of India. It is very important to trace and resolve the barriers so that the remaining trust should be preserved.

There are some major reasons for prolonged investigation and trial:-

  1. Insufficient staff – sometimes shortage of police personnel, takes a very long time to investigate. also, sometimes police officers found not to file an FIR, to avoid the overload of work
  2.  Lack of Training: The police officers are not properly trained for conducting the investigation process particularly in Rape cases. Further, they are not well equipped with necessary instruments such as forensic lab, cyber cell, and assisting officers which makes the investigation slow and ineffective.
  3.  Political Influence and Corruption: Sometimes it is observed that due to political influence or pressure by powerful persons, police officers resist investigating properly. Also, corruption among police officers is often the reason behind the delay in investigation and trial.
  4. Lack of Supervision and Inspection: There is a lack of supervision in the functioning of the police mechanism by the senior officers on their subordinates. Proper inspections are not done on the registration or filing of FIR and the investigation process. 
  5. Lack of Separate Investigation wing/body: It is observed that various duties are assigned to the police officers which makes it impracticable for them to pay proper and exclusive attention to the investigation of Rape cases. A separate investigation branch must be established which will be solely involved in the investigation of rape cases.
  6.  Lack of Cooperation by the public: Often it is complained by the police officers that there is a lack of cooperation by the public. Many times the eyewitnesses evade from giving evidence in the court and also from giving vital information to the police which in turn leads to delayed trial.
  7.  Overburdened Trial Courts: The Trial Courts are overburdened with many new and pending cases which makes it difficult to dispose of the cases quickly
  8. Delay Service of warrants/Summons: Sometimes the accused or the witnesses are not summoned properly on proper time due to which their production and examination in the Court are delayed. It is found that effective service and execution of warrants by the police is not done properly which delays the whole trial process.
  9. Delay in Submission of experts reports: Sadly, there is a significant lack of Cyber Cells and Forensic labs in many police departments of the state due to which essential tests cannot be conducted by the experts which also leads to nonsubmission of the report on time. 
  10. Adjournment of Cases: Excessive adjournment of cases in the trial court is one of the major causes of delay in disposing of the Rape cases. Sometimes the opposite party deliberately seeks adjournment which adds difficulties to the quick disposal of Rape cases.  

CONCLUSION 

Rape is the most pathetic crime committed against women. It does not only cause physical mutilation but also the mental distress that stays with her till the end of her life. The court cannot bring back what she has lost but necessary efforts could be made to secure convenient, fastest, and fair justice. Many provisions emphasize the concept of speedy trial and recognize it as a matter of right of the innocent victim. Moreover, speedy trial acts as an ointment and saves them from being re-victimized from the delayed and prolonged trials. Over the decade’s many suggestions and recommendations have been given by various committees regarding the speedy administration of justice. It is pertinent to understand that justice cannot be served to the victim by making legislations and recommendations; rather it can only be served by the strict implementation. For proper and effective implementation of laws, the roles of every block of society such as non-governmental organizations, media, police officers, medical officers, lawyers, and the judicial fraternity are of utmost importance. Strong efforts must be made to spread awareness and education among the Rape Victims about their rights so that they can avail themselves of them and get the justice that they truly deserve. In the end, the author would like to conclude by saying that delay in delivering justice is denying justice to the innocent victim because the longer they are made to fight for their rights and suffer the hardship, the longer will be the ill effects on their minds and emotions. Therefore it is necessary to provide easier and faster justice to the Rape Victims so that they can live a peaceful life and the monsters that are hiding under the cover of human beings can learn a lesson and never even think of raping a girl. By ensuring speedy justice to the Rape Victim the objective of “Rape Free India” can be achieved.

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Compensation in Criminal Cases

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This article is written by Aanya Gupta, a 1st-year law student at Vivekananda Institute Professional Studies, GGSIPU, New Delhi. The article gives an overview of the compensations being provided in criminal cases.

Introduction

Crimes committed by individuals and companies are classified in various laws according to the nature of the crime. For example, the crime of infringement of private rights is governed by civil law, and the crime of endangering the country is governed by criminal law. When the appropriate court proves the crime, the victim or victim can obtain relief from the court through compensation, court orders, and actions, or the punishment of the offender. Generally speaking, if damage to private rights is caused by tort or any civil law, compensation and court order shall be given, and the offender shall be fined or not fined by the law and criminal law. However, there is no clear distinction as to why compensation should not be granted in criminal cases. With the introduction of new research such as “victimology”, it is important to analyze the importance of compensation in criminal law. The golden sentence in the preamble highlights “social justice”, but it hardly retains its meaning in the criminal case, because the law only provides for criminal clauses and does not pass a clause on victim compensation. However, it is hopeless that compensation for the victims is considered an “oasis in the desert.”

Ancient History of Victim Compensation

The history of ancient India proves the fact that victims of crime have sufficient compensation clauses to compensate for their injuries. Since ancient times, India has recognized compensation or compensation as a form of punishment. In ancient Hindu laws, compensation was considered a royal right during the Buddhist scripture period. MANU law requires the offender to pay compensation. This shows that compensation to victims has never been an unknown concept in the country’s judicial system.

Compensation to the Victim

The criminal Justice System now recognizes that the country’s legal system does not treat the issue of compensation to crime victims in a uniform manner, so it is advantageous to discuss the legal position of compensation to victims of crime. After independence, the trials of criminals are governed by the Criminal Procedure Codes of 1898 and 1973. Until 2008, article 545 of the Old Code and article 357 of the New Code had increasingly similar provisions on compensation for women. crime victims.

In Hari Singh v. Sukhbir Singh,  the supreme court said “It should be pointed out that the court’s power to award compensation is not subordinate to other judgments, but is attached to other judgments. This power of attorney aims to do something. To ensure that victims are not forgotten in the criminal justice system. This is a measure to respond appropriately to crimes and to reconcile victims and perpetrators. The legislator stipulated section 357(3) of the Criminal Procedure Code of 1973 Provisions were made to allow the court to award any amount of compensation to victims of crime. This is described in the landmark Hari Kisan case, where the Supreme Court awarded Rs 50,000 in damages as punishment. Not only that but lower courts are also required and recommended to “exercise the power to compensate crime victims free of charge so that victims do not have to rush to file a claim in civil court.”

Malimath Committee Report

To re-examine the criminal justice system in India in 2003, the Criminal Justice System Reform Committee was established under the auspices of Judge V. Malimath. The main assumption of the function of the criminal justice system is that protecting the life and property of all citizens from harm is the prerogative and dominant function of the state. The principle of compensating victims is seen as more symbolic relief than punishment for the offender or a substantial remedy provided by law for the victim. In 2008, the CRPC was significantly revised, focusing on the rights of victims in criminal trials, especially those related to sexual crimes. Although the amendments did not affect section 357, they did introduce section 357-A. Authorizes the court to instruct the state to pay compensation to the victim.

Section 357 and Section 357A of the Criminal Procedure Code

Former Compensation Clauses for the Victim Compensation Program. Previously, Article 357 of the Criminal Procedure Law provided for compensation for crime victims. The article was to order the convicted person to pay compensation to the crime victim, provided that the defendant’s sentencing court ordered so. However, in many cases, we have seen that the convicted were of poor origin, or were unwilling to pay compensation due to long-term imprisonment, and the victims seemed hopeless. seems to be to overcome this situation. In 2009, an amendment was passed to add a new section 357 A to the Criminal Procedure Code. According to Article 357A of the Criminal Procedure Law of this article, the state is also obliged to compensate victims of crimes other than the defendants specified in Article 357 of the Criminal Procedure.

Victim Compensation Scheme

  • The state governments shall coordinate with the central government to formulate A plan to provide compensation funds to victims or their families who have suffered loss or injury or need rehabilitation due to crimes.
  • Whenever the court makes a recommendation for compensation, the regional or state legal service agency will determine the award based on the above plan as appropriate the amount of compensation.
  • If after the first instance the court finds that the compensation awarded under section 357 is not sufficient for such rehabilitation.

Conclusion

We concluded that compensation is not only required but is a very important aspect of even criminal law and the courts should not use this sparingly but a little liberally. Of course, they should be careful of not awarding too high compensation and hence should be careful.

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