GRADUAL RECOGNISATION OF VICTIM RIGHTS UNDER CRIMINAL JUSTICE SYSTEM BY - JAIDEEP M. CHOUHAN
GRADUAL RECOGNISATION OF VICTIM RIGHTS UNDER CRIMINAL
JUSTICE SYSTEM
AUTHORED
BY - JAIDEEP M. CHOUHAN
LL.M.
2nd year Modern Law College, Pune
INTRODUCTION:
In
any crime there involve two persons that are victim and offender/perpetrator of
crime. In criminal justice system much more emphasize is given to accused. More
concern to protect his right during investigation, trial and also after
conviction. In fact the victim is somewhat ignored in the justice system.
In
permitive society the responsibility of protecting one self against crime and
also punishing the offender rested with the individual which reflected the
ideas of retributive restitutive justice. As the society got organized in the
form of state the responsibility of protecting members against criminals and
punishing them shifted to the state. The penal law of ancient communities is
not the law of crime but, it is a law of wrongs. The injured person ordinarily
take civil action and recover
compensation.
Victimology
means the scientific study of victims of crime. It seeks to study the
relationship between victim and offender and the victims placement under the
criminal justice system. The victimology focused his attention on the possible
role of victim on the circumstances surrounding him in the commission of the
crime.
Historical
Prospective -
The
pioneering work in the area was initiated in the late 30s and 40s. B.Mendalsohn
is credited as the first to study relationship between victim and offender. He
termed the two as penal couple. Further Dr. Hensvon Hentig , Lawyer and Dr.
Henry Ellenvagar, psychiatric are to other pioneers in the area of victimolgy.
These two persons in fact treated the victimology as a part of criminology.
B.
Mendalsohn studies the victim on the basis of their contribution to crime and
classifying them in to following categories.
u Completely innocent victims , e.g, children, persons in
sleep.
u Victim
with minor guilt and victims of
ignorance such as pregnant women who go
to quacks for procuring abortion.
u Voluntary
victims, such as the ones who commit
suicide or are killed by
euthanasia.
u Victims
who are more guilty than the offenders, such as persons who provoke
others to commit crimes.
u The
criminal type of victims who commit
offences against others and get killed
or hurt by others in self
defence.
Von
Henting made the first even study of the role of victims in crime and found some general characteristic among them
which may be summarized a follows :
u The
poor and ignorant immigrants and those who are requisitive or greedy are the victims of offences involving frauds.
u Quite
often, the victims of larceny (Theft) are intoxicated or sleeping persons.
u The
depressed or apathetic person is a victim because he is “deprived of warning
posts” and is indifferent to harm or injury “in prospect”.
u Wanton
or sensual persons may become victims due to situations precipitated by
themselves.
u A
lonesome and heartbroken person may become especially vulnerable because of the
loss of critical faculties in him.
Theories
of Victimology: -
Although
the field of victimology has largely moved away from simply investigating how
much a victim contributes to his or her own victimization, the first forays
into the study of crime victims were centered on such investigations. In this
way, the first studies of crime victims did not portray victims as innocents
who were wronged at the hands of an offender. Rather, concepts such as victim
precipitation, victim facilitation, and victim provocation developed from these
investigations. Victim precipitation is defined as the extent to which a victim
is responsible for his or her own victimization. The concept of victim
precipitation is rooted in the notion that, although some victims are not at
all responsible for their victimization, other victims are. In this way, victim
precipitation acknowledges that crime victimization involves at least two
people an offender and a victim and that both parties are acting and often
reacting before, during, and after the incident. Identifying victim
precipitation does not necessarily lead to negative outcomes. It is
problematic, however, when it is used to blame the victim while ignoring the
offender’s role. Similar to victim precipitation is the concept of victim
facilitation. Victim facilitation occurs when a victim unintentionally makes it
easier for an offender to commit a crime. A victim may, in this way, be a
catalyst for victimization. A woman who accidentally left her purse in plain
view in her office while she went to the restroom and then had it stolen would
be a victim who facilitated her own victimization. This woman is not
blameworthy the offender should not steal, regardless of whether the purse is
in plain view. But the victim’s actions certainly made her a likely target and
made it easy for the offender to steal her purse. Unlike precipitation,
facilitation helps understand why one person may be victimized over another but
does not connote blame and responsibility.
In
view of advancement of victimology studies the theory of victim precipitation,
victim felicitation and victim provocation perceived as a negative approach to
the victim because it only focus on how the victims own contribution led to
victimization.
Types
of Victims : -
The
broadly victims are at three level. One primary victim who suffered injury or
harm by the offender directly.
Secondary
victim who suffered harm or injury as a result of harm or injury to primary
victim. The third one is tertiary victim who is another person besides
immediate victim. There are other way also by saying independently like
accident victim, environment victim, consumer victim, Domestic Violence Victim,
Child victim etc.
Impact
of victimization - The
Victim may suffer physical, financially and psychologically. The physical
impact like hypertension, increase heart beats, grief, sadness-
Financial
Impact – The financial impact of crime on the
victim may be in any one or more of the following forms :-
u costs
and expenses incurred in medical
treatment for physical injuries.
u damage
to property or articles in possession.
u Litigation
cost incurred in fighting against the crime and criminal i.e perpetrator.
u Employment
loss or financial suffering due to loss of earnings.
u funeral
or burial expenses, if any.
Psychological
Impact -
Where
the victim is confronted with the crime perpetrator immediate reaction will be
anger or fear depending on his physical strength and capacity to face the
misfortune. Shock and mental trauma follow subsequently after the crime has
been committed and the victim regains senses and is able to recapitulate as to
how he has been victimized. He gets so much distressed that he loses
self-confidence and self-esteem and life seems to have to meaning for him.
The
psychological impact of victimization is clearly reflected in the behavioral
responses of the crime victim, which may include increased alcoholism,
excessive use of drugs. Segregation of social relationships, avoidance of
people’s contact or social withdrawal and so on. He or she also develop a
serious post traumatic stress disorder.
In
1926 Sweden introduced a system in which victims were paid compensation out of
the fine imposed on the offender some concrete progress was made in Europe, the
USA and some other countries commencing from the early sixties only. Schemes to
pay the victims out of public funds were introduced in Europe, Canada,
Australia and New Zealand. Switzerland, where some pioneering work commenced in
1963, even went to the extent of amending it s Constitution to promote victim
compensation programme. So, the system of restitutive justice is not confined
now to payment out of the fines imposed on offenders but the State has also accepted
responsibility for compensation in varying degrees in these countries. Because
of the obvious reasons, mainly economic, almost nothing has been done so far in
the third world countries.
The
UN General Assembly Declaration of ‘Basic Principles of justice for Victims and abuse of power, which was adopted in November 1985
contains an exhaustive definition of the
terms ‘victim of crim in Articles 1 and
2 which reads as follows.
“Article
1 – ‘Victims’ means those who individually
or collectively, have suffered harm including physical or mental injury,
emotional suffering, economic loss or substantial impairment of their
fundamental right, through acts or omissions that are in violation of criminal
laws operative within members States including those prescribing criminal abuse
or power.
“Article
2 - A person may be considered a victim under this
Declaration, regardless of whether the perpetrator is identified apprehended,
prosecuted or convicted and regardless
of the familial relationship between the perpetrator and the victim. The
terms ‘victim’ also included, where appropriate, the immediate family or the
dependents of the victim and persons who have suffered harm in the intervening
to assist victim in distress or to prevent victimization.
The
U.N declaration of 1985 places victims under two broad heads, namely, 1.
Victims of Crime ; and 2. Victims of abuse of Power.
The right of
victims of crime include -
u Right
to Access to justice and fair treatment - It includes fair and compassionate treatment
with dignity, prompt redressal, fair and inexpensive judicial trial mechanism,
informed right, inclusion of mediation and arbitration etc.
u Right
to restitution – Includes appropriate and fair
restitution to victims, their families
or dependents, replacement of community facilities and reimbursement of the
expenses of relocation wherever such harm results in dislocation of a community
; medical expenses, costs etc.
u Right
to compensation - If
compensation is not fully recoverable from the offender or other sources, it
should be imbursed by the State. Financial compensation shall be payable to
victims who sustained significant bodily injury or impairment of physical or
mental health as result of crime. The U.N declaration (1985) also suggested
establishment of National Funds for compensation of victims of crime.
u Right
to Assistance - Such
assistance may be in the form of necessary material, medical, psychological or
social assistance through governmental, voluntary, community base or indigenous
means; availability of health and social services and other relevant assistance;
services of police, justice, health, social service and other personnel
concerned, training to sensitize these
services for helping victims.
Victims
of abuse of power -
The
expression ‘abuse of power’ denoted acts or omission that do not constitute violation
of criminal law but are nevertheless recognized to have been committed against
the norms relating to human rights by persons/authorities in power. Persons who
individually or collectively, have suffered harm, including physical or mental
injury, emotional suffering, economic loss or substantial impairment of their
fundamental rights due to abuse of power by authorities are called victims of
abuse of power.
The
basic principles formulated for justice for crime victims under the UN
Declaration (1985) identified the following areas: -
·
Access to justice and
fair treatment.
·
Restitution
·
Compensation; and
·
Assistance
Victimological
Developments in India Criminal Law Jurisprudence.
The
Law Commission of India as a result of which, it made suggestions for
introduction of provisions for compensatory relief to crime-victim under the
Indian law of crimes and procedure in
its 152nd Report (1994) and 154th
Report (1996).
The
Law Commission of India in its 154th Report on the Code of Criminal
Procedure in 1996 devoted an entire
chapter to ‘Victimology’ in which the growing emphasis on victim’s rights in
criminal cases was discussed extensively. The Commission noted that
increasingly, the attention of criminologists, penologists and law reformers has
been directed to victimology, control of victimization and protection of
victims of crimes. The incident of crimes often entail substantive harms to people and not merely symbolic harm to
social order. Therefore, needs and rights of victims of crime should receive
priority attentions in the total response to crime. One universally recognized
method of protection of victims is the compensation to victims of crime.
Indian
Constitutional Base -
The
fundamental rights enshrined in Part III of the Constitution and directive
principle of state policy in Part IV
form the butwork for a new social order in which social and economic justice
would blossom in the national life of the country. Article 51-A mandate , inter
alia that it is a fundamental duty of
every Indian citizen to have
compassion for living creatures and to develop humanism. These provisions
formed the basis for development of
Victimological principles.
Justice
Malimath Committee Report (2003)
Justice
Malimath Commitee Repost on victim of Crime and reforms in Criminal
Justice System (2003). inter alia
observed.
“Historically
speaking, criminal justice system seems to exist to protect the power,
privilege and values of the elite sections of society. The way crimes are
defined and criminal justice system is
administered , show that there is an element of truth in the above perception even in modern times. However,
over the years dominant function of criminal justice is protected to be
protecting all citizens from harm to their person or property, the assumption
being that it is the primary duty of the
state under the rule of law. Criminal justice came to comprehend
all about crime and criminal, the way he is death with, the process of
proving his guilt and the ultimate punishment
given to him. The civil law (of torts) was supposed to take care of the
monetary and other losses suffered by the victim. Thus, victims remained
marginalized and the state stood forth as the victim to prosecute and punish the accused.’’ the Committee found no
credible reason for the provision in the Code of Criminal Procedure. 1973 that
compensation could be awarded only if the offender has been convicted of the
offence with which he is charged.
The
Malimath Committee in it s report
suggested that the right of victim to appeal against the order passed by the
trial court should be further extended and right to appeal against acquittal to the High
Court should not only be limited to the
prosecution but should be available to the accused as well , where prosecution
declines to file the appeal.
As
a result of the recommendations made by the Malimath Committee, Section 372 of
Cr. P. C. as amended by the Cr.P. C.(Amendment) Act Act, 2008 now provides that
the victim need not approach the prosecution for its consent or approval to
file an appeal against the acquittal of the accused. Besides, a new Section
354-A was inserted in the Cr. P. C. by
the Cr. P. C. (Amendment) Act of 2008 which provides for compensation to
victims of crime and protection of their constitutional rights.
Compensatory
relief to victim is the ‘key feature’ of restorative justice system.
The
concept of restorative justice is woven around four major thems, namely 1)
Restoration, 2) Accountability, 3) Community Protection, 4) Skill development.
u Restoration
- It implies help
and support to victim of crime, whether the offender is apprehended and
arrested or not. Thus, restorative justice lays equal importance
on the rehabilitation of both victim and the offender to realize the rehabilitation of both victim
and the offender and makes offender to realize the consequences of his offence
on the victim and compensate the latter
for the loss or injury caused due to crime.
u Accountability
– The process of victim-offender
mediation lead the offender to accept
accountability for harmful consequences of his criminal act on the victim and
he makes amends to the victim and also to the community. Accountability of the
offender and acceptance of guilt by him, has a soothing effect on the victim
which facilitates overcoming trauma and distress caused due to his victimization. It is
positive approach involving both. Offender
and the victim to understand each
other.
u Community
Protection – Community surveillance provides
best opportunities to the offender to
rehabilitate and reforms himself and channelize his energy into productive
activities. For victim, community’s protection and assistance greatly helps in
his return to normal life, forgetting the past (victimization) and look for the
bright future. It provides him moral strength to withstand the sufferings and
consequences of his victimization.
u Skill
Development – Vocational training provides
opportunities for the offender as also
the victim to develop new skills which may help in his restoration and
rehabilitation. Competency of development programs constitutes a vital segment
of the restorative justice system.
Police
and Judicial Attitudes -
The
police are more likely to bring charges in an assault case if the victim and
offender are strangers and less likely to do so it they are related or known to
each other. The greater the prestige of the victim, the lesser the chances of
the case being dropped. Older victims being regarded as defenseless, it has
been found that cases in which the homicide victim was sixty or older were less
likely to be dismissed by the prosecutor.
Judicial
attitude, as reflected in sentencing, also appears to be amenable to the
personal factors and characteristics of
victims. More severe judicial action is discernible in cases of helpless
victims, e.g. elderly persons, children
and females. Lesser severity is reflected in the sentencing in victim
precipitated crimes/Interestingly enough, the American studies also reveal that
the attractiveness of the victim and defendant also affected sentences passed
by the court, greater sentence passed where
the victim happened to be attractive
and lesser sentence in case of attractive defendants.
In
respect of giving compensation to victim section 357 under code of criminal
procedure is there. Initially section 357 (1) permitted the Court to give
compensation to victim out of the fine amount imposed after conviction. But, on
41st law commission report the section 357 clause 3 inserted and
give discretion to the Court that the trial court is not “when the court
imposed a sentence of which fine does not form a part, the court may when
passing judgment order the accused person to pay by way of compensation such
amount as may be specified in the order to the person who has suffered any loss
or any injury by reason of the act for which accused person has been so
sentenced.
Further
with affect from 31st 2009 of definition of victim in corporate in
the Cr.PC as section 2(wa). The definition suggest victim means a person who
suffered any loss or injury caused by any reason of the act or omission
for which the accused person has been charged and the expression victim
included his or her guardian of legal heirs.
The
provision of section 353 A also added and introduce a victim compensation
scheme by the State Government in coordination of Central Government. The
scheme suggest that whenever recommendation is made by the court to district
legal service authority or state legal service authority for compensation the
authorities to decide quantum of compensation to awarded under the scheme. Even
when the offender not traced or identified and when no trial take place. The
victim or his dependents may make an application to authority for award of
compensations. These authorities also pass an order for immediate first aid
facility or medical facility to be made available for free of cost. On the
certificate of police officer not below the rank of officer in charge of police
station or a magistrate of the area concern or may pass any interim relief
which deemed to appropriate.
The
victim also got opportunity u/s. 372 of Cr.P.C proviso clause which states that, victim shall have a right
to prefer and appeal against any order passed by the court acquitting the
accused or convicting for a lesser offence on imposing inadequate compensation.
Earlier to it the appeal is to be depend upon the public prosecutor whether to
prefer or not.
Also
section 164(A) in respect of medical examination of victim of rape insulted
wherein the consent of victim is
material before her examination in person.
Right
of Victim to be heard during bail –
The
victim and the de facto complainant can
be heard at the stage of considering the bail applications of cancellation of
bail with the permission of the court.
But however, the Court may in appropriate
case if comes to a conclusion
that in the interest of justice it is necessary t hear the de facto complainant or the victim
they may be heard. However, the discretion
has to be exercised judiciously with reasonable care and caution. Harsha Sisodia, v
State of A.P. 2010 (3) Bom Cr C 202 AP.
Pronouncements
of concerning victim : -
In
Mohd. Shah V. Empero, AIR 1934 Lah 519 the offender was convicted under sections 32, 149 and 148
of the Penal Code. He was awarded one years imprisonment and a fine of Rs 500
out of which Rs. 400 was awarded to the heirs of the victim. The Lahor High
Court held imprisonment to be
substantial and, therefore, fine to be unwarranted.
In
Rudal Shah V. State of Bihar, AIR 1983 SC 1086 observed that a person is entitled to compensation for the loss or injury caused by the offence, and it includes the wife,
husband, parent and children of the deceased civtim.
The
Apex court in Sarvan Singh v State of Panjab AIR 2000 SC 362,
enumerated the factors which the courts should take into consideration while
ordering award of compensation to the
victim of crime. These factors include
capacity of the accused to pay, nature of the offence and the nature of injury
suffered by the victim as also the
overall effect of crime on the victim’s familial and social life and emotional
or financial loss caused to him/her. The Court ruled that the quantum of compensation must be
reasonable, depending upon the facts, circumstance and justness of
victim’s claim. The accused must be
given reasonable time for payment of compensation and if necessary, it may be
ordered to be paid in installments.
In
Phoolwati V NCT. Delhi, 2000 Cri. L.J.1613(Del.), the Court
awarded a compensation of three lakh rupees to the wife of the deceased for the
death of her husband caused in police custody. The Supreme court in the case of
Nulabati Behera v. State of Orisa, (1993) 2 SCC 746, emphasized on the
need to evolve new tools and mould the remedies for harm done to victim of
crime. In this case, the petitioner had claimed compensation for the death of
her 22 years old son in police custody in District Sundargharh of Orissa. The
state government on behalf of police contended that the deceased had escaped
from police custody and he was run over by a train while being chased by the
police party. Therefore, it was not a custodial death. However, the Supreme
Court rejected the plea of the Government as there was no evidence of death
having been caused by the accident and awarded a compensation of one and a half
lakh rupees to the mother of award of compensation.
The
Supreme Court in the historic Bodhisatwa Gautam v Subhra Chakraborty, AIR
1996 SC 922, . The Court in this case noted.
“Rape
is a crime not only against the person of a woman, it is a crime against the
entire society. It destroys the entire psychology of woman and pushes her into
deep emotional crisis. It is, therefore, a most dreaded crime. It is violative
of the victim’s most cherished right, namely right to life, which includes right to live with
human dignity as contained in Art. 21 of
the Constitutions”.
The
Court ordered that the accused shall pay an interim compensation of Rs 1000/-
per month to the victim (Woman) of his crime i.e rape during the entire period
of trial proceedings. The Court further ruled that, “compensation to victim
under such conditions will be justified even when the accused was not
convicted. These authorities showing the trend of judicial desecration was
exercise earlier very conservatively and gradually the victims are trying to
compensate by giving direction in this regard. Apart from criminal law
procedure now the victims are also did independently by enacting different
legislation that are Motor Vehicle Act, Protection of Woman again Domestic
Violence Act, Maintenance of parents Act, Probation and Offender Act,
Prevention of Atrocity Act etc.
The
victim of the crime were noticed much later in the Criminal Justice System but
gradually they get their rights through various legislation and international
declaration. Despite of such major it is observed that, there are many victims
who are not ready to report the incidents on the ground that, the possibility
of inefficient police, Police could not do anything in the matter or they would
not want to bothered about their case. Further due to complicity of procedures
under legislation they are under fear to approach the court. Therefor, there is
need to make police machinery more sensitize with the rights of victims. There
should be a psychologist to asses and deal with victim of the crime. The
judicial officer also need to be think out of box in order to wipe the tears of
every victim by thinking differently.