Criminal Victimization & Justice Administration in India by Prerna Deep

One night fall, a man travelling on horseback towards the sea reached an inn by the roadside. He dismounted and confident in man and night like all riders towards the sea, he tied his horse to a tree beside the door and entered into the inn. At midnight when all were asleep, a thief came and stole the traveller’s horse. In the morning the man awoke, and discovered that his horse was stolen. And he grieved for his horse was stolen and that a man had found it in his heart to steal. Then his fellow lodgers came and stood around him and began to talk. And the first man said, “How foolish of you to tie your horse outside the stable.” And the second said, “Still more foolish, without even hobbling the horse!” And the third man said, “It is stupid at best to travel to sea on horseback.” And the fourth said, “Only the indolent and slow of foot own horse.” Then the traveller was much astonished. At last he cried, “My friends, because my horse was stolen you have hastened one and all to tell me my faults and my shortcomings. But strange, not one word of reproach have you uttered about the man who stole my horse.”                                             – Khalil Gibran.

 

Crime influences the individual victims and their families. Numerous crimes likewise cause noteworthy money related misfortune to the victims. The effect of crime on the victims and their families ranges from genuine physical and mental wounds to gentle aggravations. The Canadian Centre of Justice Statistics expresses that around 33% of savage crimes brought about victims having their everyday exercises upset for a time of one day (31%), while in 27% of episodes, the interruption went on for a few days (Aucoin and Beauchamp, 2007). One-fifth of the victims felt steamed and communicated perplexity and additionally disappointment because of their victimization.

The current UN supported International Crime Victimization Surveys (ICVS) gauges demonstrated that one in five of all grown-ups will be victimized by a typical crime every year, with some of them re-victimized.

According to Quinney, “The victim is a conception of reality as well as an object of events. All parties involved in sequence of actions construct the reality of the situation. And in the larger social contacts, we all engage in common sense construction of the crime, the criminal, and the victims.”

The Code of Criminal Procedure (Amendment) Act, 2008, added clause ‘wa’ which says, “victim” means 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 expression “victim” includes his or her guardian or legal heir”.

The United Nations General Assembly Declaration of Basic Principles of Justice for Victim and Abuse of Power, 1985 defined Victim as,[1]

  1. “Victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.
  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 term “victim” also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.

Some different theories of victimization are Primary victimization, Secondary victimization (post crime victimization), Re-victimization (repeatedly became the victim) and Self-victimization (variety of reason to justify abuse).[2]

Victimology is the investigation of the hazard elements for and results of victimization, and criminal methodologies managing victims and victimization.
Justice J.N. Bhatt has defined Victimology as a science of suffering and resultant compensation.

Justice V.R. Krishna Iyer expressed on plight of the victims, “The criminal law in India is not victim oriented and the suffering of the victim, often immeasurable is entirely overlooked in misplaced sympathy for the criminal. Though our modern criminal law is designed to punish as well as reform the criminals, yet it overlooks the by-product of crime i.e. the victims[3]

India determined its criminal justice administration from the British model. There is an unmistakable division of the part and powers and elements of the Legislature, Executive, and Judiciary. The correctional logic in India has acknowledged the ideas of counteractive action of crime and treatment and restoration of criminals, which have been repeated by numerous judgements of the Supreme Court. The criminal justice system in India is based on adversarial model and is administered by and large by four laws, The Constitution of India, The Indian Penal Code, The Code of Criminal Procedure of India and The Indian Evidence Act.

The different arrangements of Indian lawful framework are making strides toward inspiring the privileges of the victim. Under Constitution of India there are a few arrangements which straightforwardly or by implication perceive the privileges of casualty and furthermore accommodate the central approach for ensuring and advancing the casualty’s privilege. The provisions in the Preamble, Part III and Part IV of the Constitution are relevant in this regard.

The principle enshrined under Article 14 of the Constitution[4] insures ‘equal protection of laws’. Fundamental right to life and personal liberty, enshrined in Article 21 of the constitution is wide enough to include greater protection to the victims of crime.[5]

The Directive Principles of State Policy enshrined under Part IV provides ‘foundation for a new social order’.[6] In fact, crime victims and other victimized people fall into the domain of Article 41.[7] Another set of provision is Article 51-A[8]which provides a fundamental duty to every citizen of India to protect and improve the natural environment…and to have compassion for living creatures” and “to develop humanism”.

Under Criminal Procedure Code of 1973, the rights and protection of victims are available under these provisions like Sections 154(2)[14], 160[15], 190[16], 406[17] and 439[18]. The Criminal Procedure Code still runs short in providing the victims their due. Section 357 (3) empowers the trial court, while imposing fines, to direct that the fine recovered be paid as compensation to the victim of the crime.

Section 9 of Evidence Act 1872  states that after filing complaint and taking cognizance of the case by the Magistrate, the victim there after does not participate in the investigation except by being called to confirm the identity of the accused or the material objects, if any, recovered during the course of investigation. Section 12(1) and 13(1) of the Legal Services Authorities Act, 1987 entitles every person “who has to file or defend a case” to legal services.[9] The Protection of Women from Domestic Violence Act, 2005 is considered as a major achievement of the women’s movement towards protection of domestic violence victims after a struggle of 16 years.

In the arena of criminal justice administration, the judiciary, assumed an impressive part. A few rights rose and involved considerable incentive in the criminal justice administration. For instance, ideal to safeguard, appropriate to legitimate guide, privileges of the captured individual, right of detainees, ideal against isolation, ideal to harms, ideal against binding, and so on. The court has embraced the idea of therapeutic justice and granted pay or compensation etc. beginning from the 1980s as seen in the cases of Sukhdev Singh vs. State of Punjab[10] , Balraj vs . State of U.P.[11]; Giani Ram vs. State of Haryana.[12]

In Mangilal v State of M.P[13], the Supreme Court dealt with the scope of Section 357(3) of Cr.P.C in detail. The Court observed: – “The power of the court to award compensation to the victims under Section 357 is not ancillary to other sentences but is in addition thereto….. Such power is available to be exercised by an appellate court or by the High Court or Court of Sessions when exercising revision powers”.

In Ankush Shivaji Gaikwad v. State of Maharashtra[14], the Court said,

“With modern concepts creating a distinction between civil and criminal law in which civil law provides for remedies to award compensation for private wrongs and the criminal law takes care of punishing the wrong doer, the legal position that emerged till recent times was that criminal law need not concern itself with compensation to the victims since compensation was a civil remedy that fell within the domain of the civil Courts. This conventional position has in recent times undergone a notable sea change…..Legislations have, therefore, been introduced in many countries….providing for restitution/reparation by Courts administering criminal justice.”

There are different laws identifying with victim and their insurance. There is an arrangement of remuneration and insurance of victim yet the question is whether this is adequate for victim.

The Malimmath Committee is a ray of hope; it saw ‘justice to victims’ as one of the indistinguishable objectives of the criminal justice administration in India. It contends for the all-encompassing equity to victims of crime by permitting them, as an issue of ideal, in criminal procedures and additionally to look for pay for misfortune or damage. The Malimmath Committee can be credited with in any event precisely expressing the self-evident – that the nonappearance of a law on witness security has brought about a developing pattern of antagonistic witnesses.

The whole criminal lawful framework works fundamentally and considerably to give equity to the victim. Giving the victims and witnesses a voice to affirm in court without dread, take an interest in the court procedures and have their rights and interests secured is of most extreme significance for the authenticity of the equity conveyance framework. Unless the legal framework is available to the general population who request justice, the framework would exist just in name and not in substance. Obviously, victims and witnesses would be amiable to getting to the framework and give honest declarations just if the framework ensured an insurance of their and their families’ Privacy, security, character and nobility.

Numerous times the victims get shunned and rebuked for disaster they confront. It’s the general public’s state of mind towards victims of crime that the general population typically accuse the victim and don’t have the compassion for them. Had the law been extreme on the criminals and dealt with the privileges of victims of crime, the circumstance would have been very different.

There are different nations in which the victim assurance program is going on and the outcome is great as there is no extent of any equivocating the victim or witness. In the event that victim feels themselves safe then no one but they can talk in courts. Similar provisions should also find their place in the Indian Legal System.

[1] Articles 1 and 2, The United Nations General Assembly Declaration of Basic Principles of Justice for Victim and Abuse of Power, 1985

[2] The Impact of Victimization Prepared by the Canadian Resource Centre for Victims of Crime

[3] V. R. Krishna Iyer: Access to Justice- A case of Basic change (1991)  p.14

[4] Equality before law

[5] Hussainara Khatoon v. State of Bihar AIR 1979 SC 1360; Joginder Singh v. State of U.P, 1994 AIR 1349

[6] Article 38 of Constitution of India

[7] Right to work, to education and to public assistance in certain cases

[8] Fundamental duties

[9] Under section 12(1) (b) every victim of trafficking in human beings or beggar; under section 12(1)(e) every person under circumstances of undeserved want such as a “victim of mass disaster, ethnic violence, caste atrocity..” is entitled to free legal services irrespective of the means test but subject to the prima facie case test.

[10]1982 SCC (Cr) 467

[11] 1994 SCC (Cr) 823

[12] AIR 1995 SC 2452

[13] 1994 SCC (4)

[14]  (2013) 6 SCC 770

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