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Chapter V

Criminal Justice Delivery System in India:

An Analytical Overview

5. 1 Introduction

In the last chapter the researcher discusses in detail the Indian

Constitutional and legislative safeguards to protect the rights of victims of

crime. The researcher tries to analyse these provisions in detail and to

interprete these provisions to know the applicability of such provisions to

protect the interest of victims of crime. The Constitution of India takes

utmost care and caution to protect and help victims of violation of human

rights.

The Code of Criminal Procedure is the main procedural law to

protect the rights of victims of crime. The Code have various provisions

to deal with victims of crime, the researcher analyses these provisions in

the last chapter with an intention to find out the specific provisions

related to victims of crime. Along with this Code, the researcher also

gone through with Indian Penal Code and Indian Evidence Act to know

the various provisions which have concern to victims of crime. To study

the procedural laws and substantive law is essential to have a complete

glance to know the various provisions related to crime victims.

The researcher has already discussed the constitutional and

legislative mechanism to protect the rights of crime victims in the last

chapter; in the present chapter the researcher tries to trace out the various

hurdles while implementing the legislative provisions to protect the rights

of crime victims. The Indian legislative mechanism always tries to give

justice to victims by punishing the offender with appropriate punishment.

193

Hence, in this chapter the researcher intended to find out various

loopholes in the existing criminal justice system and to give appropriate

suggestions to uplift the status and position of victims of crime.

To trace out the hurdles in the path to give justice to victims, it is

essential one to know the nature of Indian criminal justice system. We

know that there are mainly two types of criminal justice systems in the

world i.e. adversarial criminal justice system and inquisitorial criminal

justice system. To know the position and status of victim, it is essential

one to study the features of these two crimial justice systems. Both justice

systems insist upon right adjudication of the accused and protection of the

innocent. But there are basic differences as to rules of procedures in each

of these systems. Each system has its own merits and demerits while

giving justice to victims of crime.

5. 2 Adversarial Criminal Justice System

The system followed in India for dispensation of criminal justice is

the adversarial system of common law inherited from the British Colonial

Rulers. The accused is presumed to be innocent and the burden is on the

prosecution to prove beyond all reasonable doubt that he is guilty. The

accused also enjoys the right to silence and cannot be compelled to reply.

This right is guaranteed by Constitution of India in the form of

fundamental right1 and also a universally recognised right of the accused

under Art. 14 of the International Convention on Civil and Political

rights.

In the adversarial system truth is supposed to emerge from the

respective versions of facts presented by the prosecution and the defence

before a neutral judge. The judge acts like an umpire to see whether the

1 See Art.20 (3) of Indian Constitution.

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prosecution has been able to prove the case beyond reasonable doubt. The

trial is oral, continuous and confrontational. At the heart of the trial lies

the principle of orality, which provides that evidence should generally be

received through the live, oral testimony of witnesses in court.2

In the adversarial system, the parties use cross-examination of

witnesses to undermine the opposing case and to discover information

and other side has not brought out. Hence we can say that, parties in the

adversarial system enjoy a high degree of freedom of proof, which largely

extends to the manner in which witnesses are cross-examined. As the

adversarial system does not impose a positive duty on the judge to

discover truth he plays a passive role. The judge neither takes part in

investigation nor gives any instructions to prosecution.

As the researcher already discussed each system has its own merits

and demerits, the adversarial system insists upon strict adherence of

proceduaral law which results into less room for the state to be biased

against the accused. It provides ample opportunity to uncover the truth in

a laboratory of courtroom. This model allows both parties to fully air

their grievances and reach a final solution by a disinterested and impartial

judge. The main advantage of this system is that there is not a direct

involvement of the judge in the investigation otherwise it will lead to his

predisposed to a formulation of the critical propositions. As the

adversarial system does not impose a positive duty on the judge to

discover truth he plays a passive role. Along with this the individual’s

right to privacy is best preserved under it.

The main disadvantage of this system is that, the system is heavily

loaded in favour of the accused and is insensitive to the victims plight and

rights. Another thing is that in most of legal cases in this system do not go

to trial; this can lead to great injustice when accused has an unskilled or

2 Jonathan Doak, Victims Rights, Human Rights and Criminal Justice, Hart Publishing, (2008), p.34.

195

overworked attorney. It fails to accurately resolve complex technical

issue such as science, technology or tax or accounting regulations. Too

much insistence on procedure may lead to unnecessary delay and that is

the reason justice delayed results into justice denied. When we discuss

about the role of victim then we found that, victim act as a mere witness

as he don’t have any place under the entire procedure of criminal justicve

system.

In the adversarial criminal justice system owing to the

conceptualization of crime as an offence against the state, the criminal

justice system is traditionally viewed as a system to facilitate a conflict

between the state and the accused.3 The victim is thereby inherently

excluded.

5. 3 Inquisitorial Criminal Justice System

The inquisitorial model basically relates to Romano Germanic

System of Law, which is also known as civil law system or continental

law system. It aims to attain justice with the composite effort of the

prosecutor, the police, the defense lawyer and the court. The court can

play active role in procuring evidence, in the investigation of the case and

the examination of the witness.4

In this system power to investigate rests primarily with the judicial

police officers (Police/Judiciare). They investigate and draw the

documents on the basis of their investigation. The judicial police officer

has to notify in writing of every offence which he has taken notice of and

submit the dossier prepared after investigation to the concerned

prosecutor. If the prosecutor finds that no case is made out he can close

the case. If however he feels that further investigation is called for, he can

instruct the judicial police to undertake further investigation.

3 Ibid.p.35. 4 Prof.Madhav Prasad Acharya, The Adversarial v. Inquisitorial Models of Justice, Kathmandu School

of Law Journal,(vol.1), 2014,p.44.

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The judicial police are required to gather evidence for and against

the accused in a neutral and objective manner as it is their duty to assist

the investigation and prosecution in discovering truth. The main feature

of this system is that, the exclusionary rules of evidence hardly exist and

at the same time hearsay evidence (rules) is unknown.

The main feature of this system is that the accused is presumed to

be innocent and it is the responsibility of the judge to discover the

truth.The statements of witnesses recorded during investigation are

admissible and form the basis for the prosecution case during final trial.

The important thing is that before the trial, the judge, the accused

and the victim are entitled to participate in the hearing. However the role

of the parties is restricted to suggesting the questions that may be put to

the witnesses. It is the judge who puts the questions to the witnesses and

there is no cross-examination as such.

The evidence regarding character and antecedents of the accused

such as previous convictions or conduct are relevant for proving the guilt

or innocence of accused.When we discuss about the main advantage of

this system then we can not ignore one thing that to prove the case, the

standrad of proof required is the inner satisfaction or conviction of the

judge and not proof beyond reasonable doubt as in the adversarial system.

Victim plays an important role at every stage of the case.

The disadvantage of inquisitorial system is that there is lack of

chances of fair trial and another thing is that participation of the court in

the investigation of the case may lead to biased attitude while deciding

the case. Right to privacy of the accused is denied and the accused is

exposed to express everything which he need not express keeping in view

of merit of case.

The inquisitorial system followed specially in civil law countries

like France, Germany, Newzealand, Italy and Austria and the countries

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like United Kingdom, United State of America, India and other common

law countries followed the adversarial criminal justice system. In India

there is contrary views about the model, the various High Courts of India

expressed their views about the present criminal justice system. The High

Courts of Allahabad, Andhra Pradesh, Kerala, and Punjab & Haryana

have said that the present system is satisfactory. The High Courts of

Jarkhand and Uttaranchal have opined that the Adversarial System has

failed. The High Courts of Bombay, Chattisgarh, Delhi, Himachal

Pradesh, Kolkata, Madras, Madhya Pradesh and Orissa have expressed

that the present system is not satisfactory. Some of them say that there is

scope for improving the Adversarial System by adopting some of the

useful features of the Inquisitorial System.5

The majority of High Courts give stress on to make some changes

in the existing criminal justice system. The former President of India,

Dr. R. Venkataraman also made observation about present system:

“The Adversarial System is the opposite of our ancient ethos. In

the panchayat justice, they were seeking the truth, while in adversarial

procedure, the Judge does not seek the truth, but only decides whether the

charge has been proved by the prosecution. The Judge is not concerned

with the truth; he is only concerned with the proof. Those who know that

the acquitted accused was in fact the offender, lose faith in the system”.

The judge should play active role to find out the truth, he concerns

only about the proof as the evidences which lead before him on that basis

he decides the case. The judge doesn’t have any role in the matter of

investigation though he acted neutrally to decide the case. The Supreme

Court has criticized the passive role played by the judges and emphasized

5 See Justice Mallimath Committee Report on Reforms of Criminal Justice System, vol.1 (2003), p.27.

198

the importance of finding truth in several cases. It is the duty of a court

not only to do justice but also to ensure that justice is being done.

The researcher in nutshell tries to discuss the features of adversarial

and inquisitorial criminal justice system. In India there is voice on the

part of jurist, law Comission and even some of the High Courts to include

some of the principles of inquisitorial model. To study these features are

essential one as the researcher inteds to explore and analyse the role of

the victim during criminal proceedings by way of comparing these two

systems. To study the status and position of victim under criminal

proceeding it is essential to analyse the interaction of the victims with the

constituent elements of the criminal justice system i.e. the police, lawyers

and courts and the role played by him at each stage of the criminal

process. Ultimately the researcher intends to suggest remedial measures

to enhance the role of victims during criminal proceedings and sensitise

the criminal justice system to the needs and expectations of the victims.

Victims of crime are important players in criminal justice

administration both as complainant/informant and as witness for the

police/prosecution. Despite the system being heavily dependent on the

victim, criminal justice has been concerned with the offender and his

interests almost subordinating or disregarding the interests of victim. In

the civil law systems generally, the victims enjoyed a better status in

administration of criminal justice. Towards the last quarter of the

twentieth century, the common law world realized the adverse

consequences arising from this inequitable situation and enacted laws

giving rights of participation and compensation to the victims.

The criminal justice system in India is excessively loaded in favour

of the accused.The main principle on which the system of legal

jurisprudence is based is to let ninety nine persons get away free than to

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have even one innocent man punished. This tenet, while preventing

injustice to one innocent, denies justice to ninety nine victims of crime.

The victims experiences with the professionals operating the system,

police, prosecution and court are not good that results into the formation

of definite attitudes on the part of the victim towards all of them. If

victims come to regard their treatment as too stressful, demeaning, unfair,

distorting of reality, too remote or too little concerned with their own

rights, feelings and interests or if decisions are made which are felt to be

unsatisfactory, it is possible that their faith shold be reduced and

ultimately lead to disenchantment, disinterest and future non- cooperation

by the victim.

The researcher tries to discuss the role of victim and his/her iteraction

with the different professional during the proceeding specially with

police, prosecution and the court. In the last chapter the researcher

discusses in detail the various provisions to give justice to victims of

crime. In this chapter the researcher intends to highlight the actual

problems which the victim face when he interacts with different agencies

involved in the criminal proceeding and ultimately which results into the

violation of human rights of victims.

5. 5 The Victim and the Police

The victims first contact with the criminal justice system is with the

police. When a person who has been the victim of a cognizable offence

gives information to the police regarding the same, the police is required

to reduce the information into writing and read it over to the informant.

The informant is required to sign it and get a copy of the FIR.6 If the

police refuse to record the information, the victim – informant is allowed

to send it in writing and by post to the Superintendent of Polcie

6 See Sect. 154 (1) & (2) of CrPC.

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concerned. However the provision mandates that the same needs to be

done by post. This creates a problem because of the time that this process

takes. Assuming that both the postal department and the Superintendent

of Police are efficient, a delay of forty-eight hours can reasonably occur.

This gives ample time to the accused to tamper with the evidence, and the

first information report under Section 154 of the CrPC would then

become fruitless. If the police refuse to investigate the case for whatever

reason, the police officer is required to notify the informant of that fact.7

Alternatively, victims are enabled by Section 190 of the CrPC to avoid

going to the Police Station for redress and directly approach the

Magistrate with his complaint. This is termed as a ‘private complaint’ and

the Magistrate is empowered to order investigation, under his or her

supervision.

This is a formal process and would require the victim to engage a

lawyer inorder to satisfy the formal requirements stipulated by the law. In

the context of filing the first information report the Indian law apears to

put the onus completely on the victim. If the case is a non-cognisable

one, the police are required to refer the informant to the Magistrate.

Hence; there arises a scope for misuse by the police, which have been

empirically recorded in India. The Malimath Committee Report records

the fact that informants are treated indifferently by the police and

sometimes threatened when they go to them with their grievances. The

facts are distorted in order to make cognizable cases non-cognizable.8

Here the researcher likes to give reference of French criminal justice

system that followed the inqusitorial model of criminal justice system.

Under the French criminal law if the police do not have jurisdiction to

investigate the offence reported, they are required to take the statement of

7 Sect.157 (2) of CrPC. 8 Malimath V.S. (2003), Report of the Committee on Reforms of the Criminal Justice System. Delhi:

Ministry of Home Affairs, Government of India.

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the victim and pass the statement to the competent authorities.

Incorporating this approach into the Indian criminal law would be

beneficial for two reasons. First, the police will become the single point

for the victim/informant to approach, which will address the problems

that the present is said to have. Second, the time of a Magistrate may be

better utilized, since instead of personally recording the statement of the

victim/informant, the Magistrate will have to peruse the recorded

statement and take a decision whether the case ought to be investigated or

not.

Another alternative, which is suggested by the Malimath

Committee Report, is that the distinction between cognizable and non-

cognizable offences in relation to the power of the police to investigate

offences should be removed, and it should be made obligatory on the

police to entertain complaints regarding commission of all offences and

to investigate them.9 I think this is not desirable as the rationale in making

this distinction is to keep the police out in certain situations. For instance,

all offences against the institution of marriage are non-cognizable

offences. The legislature seems to have intended that the Magistrate apply

his or her mind before permitting the police to investigate such a

complaint. Removing the distinction would nullify this objective. Hence,

the French system seems to be more practical and desirable.

The researcher discusses the problem of victim from the procedural

point of sense when they interact with police, but in generally also the

victims face several problems when they approach to police station to

register the case. Generally the victims are unwilling to report the cases to

police. They are not happy about the attitude of police men. The most

common problem suffered by many of the victims while reporting an

offence is the absence of receptive and sympathetic attitude from police

9 Ibid.

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towards the victims.10

Sometime, in addition to the unhelpful attitude, the

harassment of victim of crime by the police is not an uncommon feature.

In reality, the victims need cooperation and moral support from the

police and it is also not possible for police to trace the crime without the

help of victims. But in reality, the police do not necessarily value the

victim as an important part of criminal justice system and they do not

necessarily see their role as offering emotional support to victims.

When we discusses the relation between police and victim and how

the victims face several problems while interacting with police in India

we found that this problem is not restricted to India but worldwide the

victims of crime, more or less face the similar problems. In foreign

countries problems of crime victims vis-à-vis the police have received

more attention than India. The Declaration of Basic Principles of Justice

and Abuse of Power11

suggested several measures to improve police

response towards crime victims. The Declaration calls upon the member

States to treat the crime victims with compassion and respect for their

dignity. According to the Declaration, victims have certain rights which

must be protected to ensure that they get a fair deal in the criminal justice

process. The administrative process must respond sensitively to the needs

of victims by informing them about the progress of investigation in their

cases and by minimizing their inconveniences, providing protection and

security to their families against any intimidation and retaliation. The

Declaration further recommends that the police along with other relevant

agencies of the criminal justice system should receive training to get

sensitized to the needs of the victims.

10

Bharat B.Das, Victims in the Criminal Justice System, APH Publishing, New Delhi (1997), p.123. 11

U. N. Doc GA Res. 40/34 (1985).

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The International Association of Chiefs of Police (IACP),12

in its

policy declaration, expects police leaders to ensure that victims are

treated as “privileged clients” and also urges police force to “establish

procedures and train personnel” to implement the “incontrovertible rights

of all crime victims”. They are as under:

1. To be free from intimidation;

2. To be informed about the availability of financial assistance and

social services and how to procure them;

3. To be provided a secure area during interviews and court

proceedings;

4. To get back stolen or other personal property when no longer needed

as evidence;

5. To speedy disposition of the case, and to be periodically informed of

case status and final disposition, and also about the release of

perpetrator from custody;

6. To be interviewed by female official in case of rape and other sexual

offences, where ever personnel and resource capabilities allow.

The Council of Europe for Improvement of Victim Protection has

been equally emphatic in highlighting the plight and problems of victims

of crime. In 1981, the Council set up a Select Committee of Experts on

the Victim and Criminal and Social Policy. Apart from programs of

victim-assistance, some guidelines relating to police response to the

victims of crime framed by the Committee were approved by the Council

of Europe in 1985.Some of these are as under:

12

The International Association of Chiefs of Police (IACP) was founded in Chicago in 1893 as the

National Chiefs of Police Union.

204

i) The victim should be treated in the police station in a sensitive

manner, so that he is not subjected to any additional emotional

damage.

ii) The victim should be apprised of the possibilities of receiving

financial, medical and psychological help from different

sources.

iii) He should also be advised about the restitutional claims and

compensation from the state.

iv) The right of victim should be protected and he should not be

subjected to secondary victimization i.e. additional damage

during the process of criminal justice.

v) Suitable measures to protect the victim and his family against

any possible threat from the offender should be taken.

vi) Informal procedures aiming at settlement of disputes between

victim and offender, without resorting to criminal justice

procedure, should be encouraged.

The Government in some countries has already enacted legislation

to protect the rights of victims of crime. For instance, in the USA, 44

States and the federal Government have legislated guidelines as to how

police and other officials in the criminal justice system should treat

victims of crime.13

These acts lay down that the police are responsible for

providing information to victims about the availability of emergency,

medical, compensation and other social services, returning property to

victims promptly, and informing the victims about the release of

defendants.

Police officers are trained to deal with the varying needs of the

victims of sexual assault, domestic violence and child abuse sensitivity.

13

See Victim Witness Protection Act, 1988.

205

In Canada, the Royal Canadian Mounted Police and the Metropolitan

Police forces in Montreal and Toronto require the police personal to

respond to the cases of domestic violence and sexual assault in a sensitive

manner.

In India to deal with the cases of juvenile the special juvenile police

unit14

is set up as the juvenile needs a special treatment but unfortunately

due to lack of implementation of the provision the purpose is not going to

be served. To deal with the cases of sexual offences, the special

machinery is essential one. At the stage of filling of the case the police

have to give every kind of support including emotional support to victims

of sexual offence.

The process of criminal justice is set into motion when the victim

reports the incident to the police. The victim then becomes an important

source of information for the police to arrest the culprit and to conduct

investigation. The need to establish a healthy police-victim relationship is

essential not only to reduce the reluctance of the victims to report crime

to the police but also to improve the quality of investigation.

On the other hand it is equally true that, the police in India is

overburdened, often operates in high risk situations, lack of adequate

remuneration and appropriate training. Proposals and reports on police

reform have not borne fruitful until now. The proposals to strengthen the

material and human resources in the police, to have a more sustained

training policy must therefore be welcome as a real improvement for the

police system in India. Equally, the creation of an investigation and a law

and order wing could lead to more efficiency within the criminal justice

system, through the higher specialization and qualification of

investigation officers.

14

See Sect. 63 of Juvenile Justice Act, 2000.

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5. 6 The Process of Investigation and the Victim

The process of investigation is the part of proceeding to punish the

wrongdoer. To collect the evidence, to find out the truth, the investigation

is essential one to put all the matter before the court. In some cases the

special investigation officer is appointed by the competent court to

investigate the matter.

When we discuss the role of victim in the process of investigation,

the Code does not seem to give any role to the victim during

investigation. The statement of the victim, if he or she also happens to be

the informant, is recorded in the form of first information report. If the

victim is not the informant, then the victim will be independently

questioned by the police.

The term ‘investigation’15

is defined to include all the proceedings

which are essential for collection of the evidence, conducted by a police

officer or by any person authorized to do so by a magistrate. As soon as

the investigation is completed, the investigation officer has to forward a

report in the form prescribed in the Code to the magistrate. Hence,

investigation begins with the filing of the first information report and

ends with the submission of final report which is also known as ‘charge

sheet’.

If we carefully observe the definition of ‘investigation’ it is clear

that there is no reason why the police cannot involve the victim in the

process of investigation. In fact, assistance of the victim might help the

police to proceed the investigation in a proper way or direction. However,

practice reveals that once the statement of the victim is recorded, the case

is completely within the control of the police and they do not involve the

victim in the investigation process at all. The Malimath Committee report

suggests that the victim should play an active part in during investigation.

15

See Sec.2 (h) of CrPC.

207

The objective of criminal justice system, according to the committee is to

find out the truth. Hence the victims involvement becomes very

important. The victim can assist the investigation in finding the offender

and in collecting the evidence to prove the commission of the offence by

the criminal. The committee also suggests that the victim should be

allowed to offer suggestions with respect to the investigation and should

be given the power to move the court for appropriate directions to ensure

proper investigation of the case. This is similar to French criminal justice

system, wherein, during the pre-trial inquiry the victim enjoys the same

rights of participation as the suspect. He or she may request the judge

d’instruction to carry out particular investigation and through his or her

lawyer, access to the case dossier is provided.

Section 157 of CrPC deals with the procedure for investigation. It

states that if it appears to the police officer that there is no sufficient

ground for entering an investigation, he or she shall not investigate the

case. However, if such a decision is taken, the officer is required to notify

the informant the fact the case will not be investigated. This seems to

have been provided to allow the informant to exercise the other options

available in the CrPC to set the criminal justice system into motion.

The next important section in the CrPC is Section 167, which states

that a person can be kept in custody for a period of ninety days, where the

investigation relates to an offence punishable with death, imprisonment

for life or ten years; and sixty days in all other cases. If the police do not

complete their investigation within the said period, the accused is entitled

to be released on bail, subject to satisfying the conditions prescribed. This

is another place where the victim can intervene and demand an

explanation from the police as to why the investigation has not been

completed on time. It would be desirable to incorporate a provision

mandating the police keep the victim informed of the progress of the

208

investigation. If the victim can contribute in expediting the process, his or

her assistance should be taken.

Section 173 of the CrPC is a place where the informant is expressly

mentioned. Subsection 2 (ii) states that, at the time of filing the charge

sheet with the magistrate, the police officer shall also communicate the

action taken by him to the person who first gave the information relating

to the commission of the offence. Hence, the CrPC clearly involves the

informant in the investigative process in two situations – the first under

Section 170 under which a preliminary report is submitted to the

magistrate by the police, if they believe that an offence has been

committed and the second under Section 173 (2) (ii).

Once the charge sheet is filed, the magistrate may take cognizance of

the offence. In the event of the magistrate deciding not to take cognizance

of the matter, the CrPC is silent as to whether, as in Section 173 (2) (ii),

the informant should be notified or whether the informant has the right to

be heard. Taking note of this situation the Supreme Court clear this

ambiguity by way of their decision but the researcher will discuss the

case law in next chapter.

The investigation agencies have been given wide and unbridled

powers in investigation but the experience shows that a criminal case

mostly fail due to delay and latches in investigation. In number of cases

accused persons were acquitted due to faulty investigation. Hon'ble

Courts in various rulings has observed about such lapses in investigation

which was proved to be fatal in criminal trial. If the prosecution fails due

to faulty investigation, the crime victim never gets justice. If the police

have been given such a wide and unfettered discretion in investigation,

why not there be a clear provision fixing liability on state to compensate

the crime victim if the prosecution fails due to latches in investigation.

209

Moreover, liberty should be given to state to reimburse itself by realizing

the amount of compensation from the erring Investigation Officer.

Another problem in investigation is lack of forensic laboratories and

modern equipments which create a major hurdle to trace the offender.

The report does not come in time and that creates delay in deciding the

matter. The investigating officers are not trained to tackle the offences

committed by using computer and other electronic devices. The things

which are seized during investigation are not kept properly and handled

properly. This is a time to give proper training to police officers and

increase forensic laboratories and modern equipments to trace such

offences to protect the rights of victim.

In this modern era, the nature of offence is going to be changed, so

the investigation authorities should upgrade the knowledge and try to

become more technosavy to trace the offender and give justice to victims

of crime and at the same time victims should be more careful to protect

ourselves.

Thus the victim is vital to the police throughout the recording,

detection and investigation of the case to the police. Yet the police do not

seen to be concerned to fulfill the victim’s need to be informed,

occasionally consulted and treated with dignity and respect. The victim

does seem to be seen as a very important participant in the criminal

justice system. We have two contradictory facts on the role of the victim

i.e. his practical importance and, in contrast, in apparent ignorance of and

an ignoring of his attitudes and his experience by those involved in

recording and investigating offences … the police.16

16

Bharat B. Das, Victims in the Criminal Justice System, APH Publishing, New Delhi (1997), p. 126.

210

5. 7 The role and participation of the Victim in the process of Trial

The researcher already discussed the role of victim in the process of

investigation and tries to analyse the scope of victim in the process of

investigation with the help of relevant provisions under code of criminal

procedure. Here the researcher tries to throw some light on the process of

trial and whether the victim has any voice under the entire process of

trial. The debate in the context of participation of the victim in the trial

revolves around the issue of when and to what extent should the victim be

allowed to participate. In this part of the chapter, the researcher shall

examine the Criminal Procedure Code and the extent to which victims

are permitted to have a voice in the prosecution of crimes against them.

The term ‘participation’, in the context of victims, has been defined

to include ‘being in control, having a say, being listened to or being

treated with dignity and respect’17

. But when we talk about the nature of

criminal justice system we found that in most of jurisdictions, crime is

considered to be an offence against society. It is also considered that

criminal liability imports stronger moral culpability than other forms of

legal liability. Hence crimes are distinguished from other unlawful acts,

by virtue of their public character18

. This implies that the society is the

victim of such a crime and it is the duty of the society to restore the

balance disturbed by the commission of the crime. Hence, the State, and

not the actual victims, has the responsibility to prosecute offenders.

The Indian system classifies trials into those that are conducted by a

‘Court of Session’ and those that are conducted are by a ‘Magistrate’s

Court’. A Court of Session cannot directly take cognizance of any offence

exclusively triable by such court according to the First Schedule. A

17

Doak Jonathan, ‘Victims Rights in Criminal Trials: Prospects for Participation’, Journal of Law and

Society, (2005), Vol.32, p.295. 18

Edwards I., ‘The Place of Victims Preferences in the Sentencing of their Offenders’, Criminal Law

Review, (2002), p.699.

211

competent Magistrate may take cognizance of such an offence and

commit the case to the Court of Session for trial.19

Even in respect of

other offences a Magistrate may commit a case to the Court of Session

under the circumstances mentioned in Sections 322 to 324 of CrPC. All

such cases shall be tried by the Court of Session according to the

procedure laid down in Sections 226 to 236 of CrPC.

The Public Prosecutor is appointed by the government for conducting

prosecutions, appeals or any other proceedings on behalf of the

government.20

The Code does not specifically mention about the spirit in

which the duties of the prosecutor are to be discharged. It does not speak

of the attitude, the prosecutor should adopt while conducting the

prosecution. The objective of a criminal trial is to find out the truth and to

determine the guilt or innocence of the accused.

The duty of the prosecutor in such a trial is not merely to secure

conviction at all costs but to place before the court whatever evidence is

possessed by the prosecutor, whether it be in favour of or against the

accused, and to leave the court to decide upon all such evidence whether

the accused was or was not guilty of the offence alleged.21

It is no part of

the prosecutor’s duty to obtain convictions by hook or by crook. The

prosecutor plays a very important role in the administration of justice.

A public prosecutor should be personally indifferent to the result of

the case. His duty should consist only in placing all the available

evidence irrespective of the fact whether it goes against the accused or

helps him, before the court, in order to aid the court in discovering the

truth. It would thus be seen that in the machinery of justice a Public

Prosecutor has to play a very responsible; the impartiality of his conduct

is as vital as the impartiality of the court itself.

19 See Section 209 of CrPC. 20

See Section 24 of CrPC. 21

Ghirrao v. Emperor, (1933)34 CrLJ 1009, Ram Ranjay Roy v. Emperor, ILR (1915) 42 Cal 422

212

The Public Prosecutors who conduct prosecutions on behalf of the

State have their own rules of conduct whose function is to place the

whole incident in a proper perspective to facilitate an objective decision.

The role of the prosecutor has already come in for considerable critical

comment on the ground that they are more inclined to be committed to

the idea of successful prosecution and conviction of the offender than to a

just and dispassionate presentation of the facts. This approach may satisfy

the higher principles of justice, but leaves the victim cold.22

The public prosecutor, in charge of a case may appear and plead

without any written authority, before any court in which the case is under

inquiry, trial or enquiry.23

More importantly, Sub-section (2) of the same

section makes a provision for the appointment of a pleader by a private

person. The powers of the pleader are restricted since the section states

that the prosecution will be carried out by the Public Prosecutor, and

pleader shall act under the directions of the Prosecutor. The pleader is

however allowed to submit written arguments to the court, if it so

permits, after the evidence is closed. Section 302 of CrPC goes a step

further. It states that any magistrate inquiring into or trying a case may

permit the prosecution to be conducted by any person, other than a police

officer below the rank of Inspector and who is not the part of

investigation. This thus empowers the victim to argue the case himself or

herself or through his or her pleader. The only limitation to this right is

provided in Section 225 of the CrPC. This Section states that in every

trial before the Court of Session, the prosecution shall be conducted by a

Public Prosecutor. Hence in a trial before the Court of Session, the victim

only exercise his or her rights to appoint a pleader, as provided by Section

301(2) of the CrPC.

22

S. Venugopal Rao, Victims of Crime, Allied Publishers Limited, New Delhi, (1989), p.22. 23

See Section 301 of CrPC.

213

When we try to analyse the view of competent court on this issue we

found the different views as in Thakur Ram v. State of Bihar24

, the

Supreme Court of India ruled that in a case which has proceeded on the

basis of a charge sheet, a private party has no locus standi. It further ruled

that barring a few exceptions, in criminal matters the aggrieved party is

the State, which is the custodian of the social interests of the community

at large, and hence it is the duty of the State to take all steps necessary for

bringing the person who has acted against the social interests of the

community to book.

In Kuldip Singh v. State of Haryana25

, the High Court of the

provinces of Punjab and Haryana ruled that the court has no role to play

as regards the victim hiring his or her own pleader, since the pleader’s

role is confined to briefing the Public Prosecutor. The court further ruled

that it comes into picture only if the counsel so appointed, seeks to submit

written arguments.

In All India Democratic Women’s Association v. State26

, the High

Court of Madras ruled that Section 301 (2) of the CrPC gives a third

party only a right to assist the prosecution. The court held that the

prosecution of criminal proceedings is the primary responsibility of the

State and if third parties are permitted to intervene, then there will be a

number of associations to represent one party or the other in criminal

proceedings, and this would give rise to confusion and chaos.

The researcher will discuss the role of judiciary on this point in detail

in next chapter while analyzing the role of judiciary to protect the rights

of victim.

The next issue that needs to be examined, in the context of

participation of the victim in the trial, is whether the opinion of the victim

24 AIR 1966 SC 911 25

1980 CriLJ 1159 26

1998 CrLJ 2629

214

should be taken at the time of sentencing. In this context, it is relevant to

examine the victim personal statement (VPS) scheme set up in the United

Kingdom, under the Victim’s Charter.27

The VPS is intended to give

importance to the views of the victim with regards to prosecuting and

punishing offenders. The VPS is a statement written in the victim’s own

words. It gives victims of crime an opportunity to tell criminal justice

agencies and the courts about how a crime has affected their lives. It also

helps criminal justice agencies to understand fully the impact that the

crime has had on the victim so that they can make decisions about the

case. The VPS is optional. No pressure should be put on victims to make

one if they don’t want to. However, it is important that the victim

understands the benefits of making one.

The VPS can explain the impact of the crime on the life of victim or

the relative of victim which include any physical, emotional or

psychological injury they have suffered or any treatment they may have

received as a result of the crime. At the same time it is equally important

one that once the VPS is signed, it cannot be altered or withdrawn. The

VPS may be reported on in the media and it is possible that on rare

occasions victims may be cross-examined by the defence on the content

of their VPS. The most important thing is that the VPS should not contain

the opinion of the victim on what the sentence should be as this is for the

Magistrate or judge to decide.28

The American criminal justice system also have such practice which

is more or less equal to U. K. system, where the court allowed to the

victim to put his or her submission in the form of Victim impact

statements at the time of sentencing. Victim Impact Statements (“VISs”)

are statements read by, or on behalf of, victims of crime at the sentencing

27

United Kingdom Home Office , Victim’s Charter, (1996), London: HMSO 28

See www. Victimsupport.co.uk accessed on 15-04-2015 at 11:10 a.m.

215

phase of criminal proceedings. After the defendant has been found guilty

by the judge or jury, the victim is afforded the opportunity to make a

statement to the court regarding the impact of the crime on the victim and

her family. Typically these statements are offered by the victim to

encourage the maximization or enhancement of the penalty upon the

defendant. The statements are often filled with emotion, and the

defendant is not able to rebut the statements.29

The traditional view has been that victims are to have no role as

decision-makers or consultees in the sentencing process. The only extent

to which they may be allowed to participate is as information providers.

Conflicts are taken out of the hands of the victims to ensure impartial

justice and rationality. Hence it has been opined that the general principle

is that no weight should be given to victim’s opinions. This is based on

the rational that given the public nature of criminal offences, the

objectivity and rationality of the sentencing process has to be maintained.

On the contrary the accused has right to put his or her submission

before the court at the time of sentencing. The Code confers such right to

the accused in the form of pre-sentence hearing30

. But the same right is

not conferred to victim or relative of victim to express their opinion on

sentence given to accused person.

Another provision of the CrPC that is worth examining in this

context is calling for records to exercise powers of revision.31

The Code

empowers a High Court or a Session Court to call for records of any

proceedings before an inferior criminal court to satisfy itself as regards

the legality, propriety or correctness of an order, sentence or finding of a

lower court. From the nature of the powers given to the revisional courts,

it seems to follow that the revisional court can act either on its own

29 See http: // Scholarship.law.berkeley.edu/bjcl/vol.2/iss1/3 accessed on 18-04 2015 at 04:32 p.m. 30

See Section 235(2) of CrPC. 31

See Section 397 of CrPC.

216

motion or on the motion of even a stranger who may be instrumental in

bringing to the knowledge of the revisional court a matter which

otherwise the revisional court may not have known.

The revisional court can interfere on information contained in the

newspaper or a placard on a wall or on an anonymous postcard, provided

it considers that the sufficient grounds have been established to justify its

doing so. At the same time the revisional court has to be loath to take

action on an application for revision presented by a third party on its own

responsibility and without authority from either of the parties. It becomes

the duty of the revisional court to see that a stranger to the proceedings

does not employ his information as an instrument of vengeance on the

accused or attempt to serve his own private end.32

The question whether a

stranger has a right to appeal in a proceedings initiated suo motu by the

court has been answered in the negative. However, the Supreme Court

ruled that the stranger’s revision petition would be maintainable.33

From the above discussion it is clear that, the victim has the right to

approach the court in ‘revision’ and point out an error in the inferior

court. There appears to be no rational in allowing the victim to intervene

at a later stage but not at the initial stages.34

The Malimath Committee Report has suggested quite a few changes

to the Criminal Procedure Code to give the victim a prominent role. It

suggests that the French system, wherein the victim becomes a party to

the proceedings at the stage of investigation itself, be incorporated in the

Indian law. It further suggests that the active participation of the victim in

the trial will be of great help in the search for truth, without

inconveniencing the prosecution. It suggests that the victim be permitted

32

Purshottam Vijay v. State, 1982 Cri LJ 243; see also, Shailabala Devi v. Emperor, (1933) 34 Cr LJ

1115; Pratap v. State of U.P., (1973)3 SCC 690. 33

K. Sudhakaran v. State of Kerala, (2009)4 SCC 168. 34

Satish M. and Chandra C., ‘Third Party Intervention in Criminal Litigation’, Supreme Court Cases

Journal (2005) Vol.2, p. 75-80.

217

to suggest questions that the court may put to witnesses; that the victim

be allowed to conduct the trial if the Public Prosecutor does not exercise

due diligence; that the victim be allowed to supplement the evidence

adduced by the prosecution and put forth his or her own arguments. The

committee also suggests that the right of the victim should extend to

prefer an appeal against any adverse order passed by the trial court. It

further suggests that, as in the case of the accused, the victim should also

be provided with a lawyer if he or she is indigent.

5. 8 Compounding of Offences and withdrawal from prosecution

Another area where the role of the victim comes into prominence is

in situations where the Criminal Procedure Code permits a premature end

to the trial. Section 320 of the CrPC deals with compounding of offences,

wherein the victim is allowed to withdraw the case filed by him or her.

This is allowed only with respect to certain offences, enumerated in the

said section.

Under certain circumstances it may be advisable to allow the

compounding of offences and to drop the criminal proceedings if there is

a settlement between the accused person and the victim of the crime.

Sometimes, the Public Prosecutor or the complainant may consider it

expedient to withdraw from the prosecution; and the court may allow

such withdrawal and put an end to criminal proceedings. Under certain

circumstances, the Magistrate himself may consider it desirable to stop

the proceedings, and the Code, subject to certain safeguards, allow it to

be done.

A crime is essentially a wrong against the society and the State.

Therefore any compromise between the accused person and the

individual victim of the crime should not absolve the accused from

criminal responsibility. However, where the offences are essentially of a

218

private nature and relatively not quite serious, the Code considers it

expedient to recognize some of them as compoundable offences and some

others as compoundable only with the permission of the court. The

compoundable offences are mostly non-cognizable offences are not

compoundable. Then again, the offences which are compoundable only

with the permission of the court are mostly cognizable offences, though

all cognizable offences are not so compoundable.

On the other hand, deals with the situations where the State can

withdraw from prosecuting the offender.35

The section implicitly makes

room for such considerations by enabling the Public Prosecutor to

withdraw from the prosecution of any person with the consent of the

court. The withdrawal from prosecution under the section may be

justified on broader considerations of public peace, larger considerations

of public justice and even deeper considerations of promotion of long-

lasting security in a locality, of order in a disorderly situation or harmony

in a faction milieu, or for halting a false and vexatious prosecution.36

The section provides for “the withdrawal from the prosecution” and

not “the withdrawal of the prosecution”. Withdrawal from a prosecution

means retiring or stepping back or retracting from the prosecution, in

other words, withdrawal of appearance from the prosecution or refraining

from conducting or proceeding with the prosecution. However, when the

court consents to such withdrawal from the prosecution, the accused

person shall be discharged or acquitted in accordance with the provisions

of clauses (a) and (b) of Section 321.37

The usage of this provision has been quite controversial as Section

321 does not mention whether a complainant or any other person can

oppose the application of the Public Prosecutor seeking permission to

35 See Section 321 of CrPC. 36

Subhash Chander v. State (Chandigarh Admn.), (1980) 2 SCC 155. 37

Public Prosecutor v. Mandangi Varjuno, 1976 Cr LJ 46 (AP).

219

withdraw from the prosecution. The Supreme Court has laid down the

guidelines that the State needs to follow when withdrawing from

prosecution. The issue that arises is whether the victim has a right to

oppose such withdrawal by the State. The Supreme Court gives answer to

this issue was in the case of Abdul Karim v.State of Karnataka.38

In this

case, the State sought to withdraw serious charges under the Terrorist and

Disruptive Activities (Prevention) Act, giving in to the demands of a

brigand who had kidnapped a popular movie star. The father of one of the

policeman killed by the brigand approached the Supreme Court, seeking

its intervention in this case. The State did not challenge the locus standi

of the petitioner and hence the court ruled on the merits of the case and

laid down guidance in that regard.

The Andhra Pradesh High Court in M. Balakrishna Reddy v. Home

Dept.39

, has held that a third party who has suffered as a result of the

offence shall have the right to prosecute if the State withdraws the

prosecution. Thus the court implicitly recognized the right of the victim

to oppose applications filed by the State for withdrawal from prosecution.

The researcher discusses how the victim face various hurdles under

criminal justice system by elaborating the different provisions of Code of

Criminal Procedure as the Code confers various rights to victims of

crime but these provisions are inadequate to meet the ends of justice. The

researcher discuss the specific or technical problems, the victim may face

during the course of proceeding. Apart from this in general sense also the

victim may face various problems.

The length of time that needs to complete the trial varies from case to

case. If a case in which the plea is not guilty, the delay is for years

together. The proceeding is lengthy; it takes time for every activity as to

38

AIR 2001 SC 116. 39

1999 Cr LJ 3566 (AP)

220

record the evidence, to lead the witnesses, frequent adjournments the

victim has to wait for a long time. The victims may feel humiliated and

they disappointed regarding the trial of a case.

The victims generally have little idea of the progress of the case

through the various pre-trial appearances. Victims are usually almost

completely uninformed about the progress of their case prior to the trial.

The only information they may receive from official sources is in the

form of summons, but the summons is itself found to be uninformative as

it doesn’t contain any details of case, it states only about the presence of

the victim on particular date. Apart from this there is no any process to

give information to victim about the progress of case; this is serious

lacuna in the system that the victim is completely unknown about the

proceeding.

It is not that victims are apathetic about the progress of their case;

they are very much interested to know about the case or stage of case.

Some of them try to attend the court proceeding to find out what is

happening through official or unofficial sources. Most of them

experienced that either the police or courts are too busy to be bothered by

them or that it is not their place to find out, it is up to the system to

inform them. The victims don’t know which prosecution lawyer is going

to argue before court to give justice to them. There is lack of

communication gap between the prosecution lawyer and the victim or

relatives of victim.

The victims who attend the court for various reasons as it is not

restricted the role of victim to answering the questions in witness box or

listening to what is being said. There are the contracts they may have with

the police and the courts when being summoned to come to court. There

are different of experiences to wait outside the court room and the contact

they may have there with police officers, prosecution lawyers or counsel

221

or with the wrongdoer or offender. Even after giving evidence, there is

the problem of obtaining witness expenses and the main question is that

whether these expenses are sufficient to meet the costs of victims in

attending court. It is the duty of the State to care of these expenses by

taking review time to time so as to fulfill the needs of victim.

In court the prosecuting lawyer argue before the court and police

assist them in prosecuting the case. Victims who did attend the court for

to give witness or just to watch the proceeding out of their own interest

find that prosecutor and police officers did not act or support up to their

expectations. In general the impression creates that, the victim being

isolated and confused at court, not knowing what they may be required to

do or what they are allowed to do. They do not realize what it happening

around them and it is rare for anyone to explain it to them. Police officers,

when they were present did seem to make some efforts to take of victims

and try to boost their confidence.

In a study performed by Kelly40

, found that rape victims felt they

were denied participation in and information about what they saw as

‘their’ case. Some of them also felt that the prosecutor not taking care of

to protect their interest. In such cases the victims of sexual offences need

different kind of treatment as emotional and mental support. The Indian

judiciary by way of their decisions gives directions to protect the interest

of victims of sexual offences.

There is considerable inconvenience involved for victims who

attend court which will definitely have a negative effect on potential

victims going to the court, even when they suffer due to crime. The most

important problems of victim during the trial is that there is no any

facility in the premises of court to fulfill their basic needs. Even the basic

40

D.P.Kelly, “Victims reaction to criminal justice response”, paper delivered at 1982 Annual Meeting

of the Law Society Association, Toronto, Dt. 06-06-1982.

222

amenities like shelter, seating, drinking water, toilets etc. are not

provided. A victim or a witness who has a single experience of attending

court for giving evidence would never again in his life time to be put in

that situation. This may include travel costs, loss of earnings, and

difficulty in finding replacement staff at work or finding someone to look

after children. The total financial burden sustained by victim is much

more in comparison to which they may get back from Government. The

amount which they may get from State is so meager, not sufficient to

meet their expenses. The Law Commissions in their reports suggested

that these expenses should be enhanced to encourage the victim and

witnesses to appear before the court.

There are also a number of other factors responsible for the

unwillingness of the victim to process the case through the criminal

justice system. The first is that the criminal justice procedure is time

consuming it takes indefinite time to decide the matter so ultimately it

results in to ‘justice delayed is justice denied’. The police take much time

for the investigation of case and this delay may be helpful to accused to

temper the evidence. Another reason is that there are frequent

adjournments due to this or that reason. The worst treatment of victims

arises from incompetence of the agencies who involved in the

proceedings such as distortion and swaying of evidence, concealing

material facts, overlooking relevant arguments, files disappearance,

failure to answer letters, failure to satisfy Court dates, decisions and

appeals. These are some of the major problems that have contributed to

the failure of the Criminal Justice System.

The prospect of the case and the experience of the victims who

report a crime is such that they may feel unmotivated to make the efforts

required to have a case prosecuted. Victimization studies of other

countries demonstrate that a majority of the victims even of serious

223

crimes do not report their victimization to police.41

Generally it is

experienced that victims who were serving as witness in criminal

proceedings found that the more experience a person had with the court,

the greater reluctance expressed about getting involved again.

The researcher discusses the role of prosecutor as he takes up the

case of the victim on behalf of the state. The emphasis of prosecution is

never on the personal concerns and problems of the victims. The

prosecution is committed to achieving successful prosecution, resulting in

conviction of the offender.

Contrary to the Indian conditions, the role of prosecutor in some

foreign countries, like the USA, is more favourably inclined towards

crime victims. Responsibilities of prosecutors towards victims, as per the

Report of President’s Task force report of victims of crime42

are,

I) To keep victims informed of the status of their cases, from the

initial charges lodged against defendants to the parole of convicts.

II) To bring to the attention of appropriate authorities the victims view

on questions of bail, negotiated pleas, dismissed cases, and dropped

charges, sentences, and restitution arrangements.

III) To protect victims from harassment, threats, injuries and other

forms of intimidation and retaliation.

IV) To resolve cases as quickly as possible without unnecessary

delays.

V) To help victims avoid needless waste of their time and money to

notifying them of court appearances and schedule changes.

VI) To assist victims in getting back stolen property recovered by the

police.

41

P.H. Ennis, “Criminal Victimization in United States: A Report of National Survey, National

Opinion Research Center, University Press, Chicago, (1967)., see also Law Enforcement Assistance

Administration, Criminal Victimization in United States (Vol.1), Washington D.C. Department of

Justice, (19740. 42

Final Report, Washington D.C.: U.S. Government Printing Office, (1982).

224

Apart from this report the US takes initiative to protect the interest

of crime victims. The US passed the Crime Victims Rights Act (CVRA)

on Oct. 30, 2004. The CVRA establishes the rights of crime victims in

federal criminal proceedings and provides mechanisms for victims to

enforce those rights. The CVRA gives victims a greater role in the

criminal justice process and significantly affects the way Department of

Justice Employees interact with crime victims.

In addition to the rights granted under the CVRA, crime victims

receive services to help them through the criminal justice process.

Pursuant to The Attorney General Guidelines for Victim and Witness

Assistance, victim service professionals in the various investigative

agencies and litigating components in the Department of Justice provide

numerous services to victims of federal crimes. These services begin at

the investigative stage and continue through the prosecution stage, post

conviction proceedings, and imprisonment. The services include

emergency assistance, counseling and social service referrals, assistance

with creditors, providing information about victim impact statements,

assistance with securing victim compensation, and restitution

information.

In U.K. also takes the initiative long back to protect the rights of

crime victims, as in 1964 itself they establish the compensation tribunal

to give compensation to victims. In 2001 in a report on “Criminal Justice:

The Way Ahead’, the policies consisting comprehensive guidelines for

rights of victim and their effective operation through the key components

of criminal justice system include a “better deal for victims and

witnesses.” More recently in 2013 the UK revised the Code of Practice

for Victims of crime which was launched in April 2006. The Code sets out

the services the victim can expect to receive from each of the criminal

225

justice agencies, like the police and the Crown Prosecution Service. The

Code makes it obligatory on the part of agencies who involve it the

proceedings to assist the victim at every stage of the trial.

In France also victims interest protected as victim is the part and

parcel of criminal proceeding. The victim enjoys a more formal status

and role within the investigation and trial phases in French criminal

justice system. The preamble to Criminal Procedural Code contains a

reference to the duty of the judiciary to guarantee the rights of the victim

throughout the criminal process, together with specific requirements in

the code to offer guidance and assistance to victims.

In France, all those who suffer damage on account of the

commission of an offence are entitled to become parties to the

proceedings from the investigation stage itself. He can assist investigation

on proper lines and move the court for appropriate directions when the

investigation gets delayed or distorted for whatever reasons. His active

participation during trial will be of great help in the search for truth

without inconveniencing the prosecution. He may suggest questions to

the court to be put to witnesses produced in court. He may conduct the

proceedings if the public prosecutor does not show due diligence. He can

supplement the evidence adduced by the prosecution and put forth his

own arguments. He would be of help to the court in the matter of

deciding the grant or cancellation of trial. He will adduce evidence in the

matter of loss, pain and suffering to decide on his entitlement of interim

reliefs and compensation by way of restitution.

Wrongful attempts to withdraw or close the prosecution due to

extraneous factors can be resisted if the court were to have the continued

assistance of the victim. For all these reasons and more, it is clear that if

the criminal proceedings have to be fair to both the parties and if the court

226

were to be properly assisted in its search for truth, the law has to

recognize the right of victim’s participation in investigation, prosecution

and trial.

In India also the Government of India takes the initiative to protect

the interest of victims and made several amendments in the existing

legislative framework but only question is that whether these changes are

sufficient to protect the rights of victim? The part of this movement the

Government of India appointed Justice Malimath Committee in 2000

with an intention to bring the reforms in existing criminal justice system.

The committee submits its report in 2003 and on the basis of this report

the Criminal Law (Amendment) Act, 2008 took place.

5. 9 J. Malimath Committee Report and Reforms in Criminal

Justice System

The Committee on Reforms of the Criminal Justice System was

constituted by the government of India, Ministry of Home Affairs by its

order dated 24 November 2000, to consider measures for revamping the

Criminal Justice System. The committee appointed under the

chairmanship of Dr. Justice V. S. Malimath, former Chief Justice of

Karnataka and Kerala High Courts, Chairman, Central Administrative

Tribunal and Member of the Human Rights Commission and other

members.

The terms of reference for the Committee are:

i. To examine the fundamental principles of criminal jurisprudence,

including the constitutional provisions relating to criminal jurisprudence

and see if any modifications or amendments are required thereto;

ii. To examine in the light of findings on fundamental principles and

aspects of criminal jurisprudence as to whether there is a need to re-write

the Code of Criminal Procedure, the Indian Penal Code and the Indian

227

Evidence Act to bring them in tune with the demand of the times and in

harmony with the aspirations of the people of India;

iii. To make specific recommendations on simplifying judicial procedures

and practices and making the delivery of justice to the common man

closer, faster, uncomplicated and inexpensive;

iv. To suggest ways and means of developing such synergy among the

judiciary, the Prosecution and the Police as restores the confidence of the

common man in the Criminal Justice System by protecting the innocent

and the victim and by punishing unsparingly the guilty and the criminal;

v. To suggest sound system of managing, on professional lines, the

pendency of cases at investigation and trial stages and making the Police,

the Prosecution and the Judiciary accountable for delays in their

respective domains;

vi. To examine the feasibility of introducing the concept of “Federal

Crime” which can be put on List I in the Seventh Schedule to the

Constitution.

The committee submitted its report to the Union Home Ministry on

April 2003 for further consideration and action. It is the first time in 150

years of Indian legal history that such wide-ranging reforms are being

proposed. The committee has suggested reforms in the existing criminal

justice system as they consider that “the criminal justice system is

virtually collapsing under its own weight as it is slow, inefficient and

ineffective” and that “people are losing confidence in the system”. The

recommendations however, have far reaching consequences for the rule

of law in India. The researcher intends to discuss only those

recommendations which are related to victims of crime and the

amendment took place on the basis of these recommendations.

228

The Malimath Committee made following recommendations to

improve the status of victim under the Indian criminal justice system.

1.The victim, and if he is dead, his or her legal representative, shall have

the right to be impleaded as a party in every criminal proceeding where

the offence is punishable with seven years imprisonment or more.

2. The victim may be made a party to assist the court in discovering truth.

He may be permitted to put questions or suggest questions to be put by

the court to the witnesses produced by the parties. He can also point out

the availability of other evidence that would assist the court in

discovering truth. On the victim furnishing such information the court

may cause production of such evidence as it considers necessary to

discover truth.

3. Active participation of the victim during investigation would be helpful

in discovering truth. He can assist investigation in finding out the real

offender and in collecting evidence to prove the commission of the

offence by the assailant. He can also offer suggestions for proper

investigation of the case. When the investigation proceeds on wrong lines

the victim can move the court for appropriate directions to ensure proper

investigation of the case.

4. The victim should have the right to be represented by a lawyer. If the

victim is an indigent person and is not in a position to engage a lawyer,

the State should provide him a lawyer. When the State has an obligation

to provide a lawyer to the accused, there is no good reason why the

victim should not be provided a lawyer at the cost of the State.

5. The victim or his representative who is a party to the trial should have

a right to prefer an appeal against any adverse order passed by the trial

court. In such an appeal he could challenge the acquittal, or conviction for

229

a lesser offence or inadequacy of sentence, or in regard to compensation

payable to the victim.

6. There is need for an officer equivalent to Probation Officer to take care

of victim interests in investigation and trial. He may be called Victim

Support Service Co-ordinator who may work closely with the police and

Courts to monitor, co-ordinate and ensure delivery of justice during the

pendency of the case.

7. Victims of rape and domestic violence etc. require trauma counseling,

psychiatric and rehabilitative services apart from legal aid.

8. Victim should get the compensation apart from the accused is

convicted, acquitted or absconded and it is the responsibility of State to

provide compensation to victims of crime or relatives of crime and State

should make such arrangement by providing funds to compensate the

victims of crime.

In nutshell we can say that the Justice Malimath Committee has made

some progressive and welcome recommendations to protect the rights of

victim. The rights include, right to participation, the right to produce

evidence, to ask questions to the witnesses, to know the status of

investigations and to move the court for further investigation, to advance

arguments, to participate in negotiations, and the right to appeal under

certain circumstances. Equally, the proposal for a Victim Compensation

Law enshrining the State’s obligation to compensate victims even when

the offender is not apprehended is a step towards a real protection of

victims of crime and human rights violations.

On the recommendations of J. Malimath Committee the amendment

took place in 2008, the researcher feels that, it is important one to analyse

those provisions which are inserted with an intention to protect the rights

of victim under Indian criminal justice system.

230

5. 10 The Code of Criminal Procedure (Amendment) Act, 2008 and

Rights of Victim

The Code of Criminal Procedure (Amendment) Act, 2008 brought a

radical and impactful change in the Indian Criminal Justice System by

introducing and redefining the rights of the victims. The victims were

conferred more rights and the major changes that took place have been

discussed below.

The most important thing is that the Code first time defines the term

victim as the term defined by inserting a new Section 2(wa). ‘Victim’

means a person who has suffered any loss or injury caused by a reason of

the act or omission for which the accused has been charged and the

expression ‘victim’ includes his or her guardian or legal heir.

The definition incorporated under this section widens the expression

‘victim’. The new definition includes a guardian or legal heir of the

victim and thus confers them with rights equivalent to a victim.

Appointment of an Advocate – A clause has been added to Section 301

(2) whereby a victim has right to engage an advocate of his choice to

assist the public prosecutor and who act as per the directions of Public

Prosecutor or Assistant Public Prosecutor, and may, with the permission

of the court, submit written arguments after the evidence is closed in the

case. In another way also a victim has right to appoint a lawyer of his

choice to assist the Special Public Prosecutor43

and his role is also same

as in earlier case.

Protection to Rape Victims – A proviso has been inserted in Clause (a)

of Section 26, which provides that any offence under Section 376 and

sections 376 A to 376 D of the Indian Penal Code shall be tried as far as

practicable by a Court presided by a woman. In Section 157, a second

proviso has been inserted in relation to evidence of rape, whereby

43

See Section 24 (8) of CrPC.

231

recording of statement of the victim shall be conducted at the residence of

the victim or in place of her choice and as far as practicable by the

woman police officer in the presence of her parent or guardian or near

relative or social worker of the locality. The said provision thus makes an

exception for the rape victims during investigation and confers them with

more rights. A new sub-section (1A) is inserted in Section 173 with a

view to provide that the investigation of the offence of rape of child shall

be completed within three months from the date on which the information

was recorded by the officer-in-charge of the police station. Also, a new

proviso has been added in Section 327(2), which provides that a woman

Judge or Magistrate should conduct the in-camera trial. The Law

Commission of India also made the above recommendations.44

Protection to Witnesses – The protection is conferred to witnesses of the

case and the person who tried to commit any threat to the witnesses such

persons are liable to be punished and a new Section inserted to make

provision for a witness or any other person on his behalf to file

complaints in relation to an offence under Section 195 A of the Indian

Penal Code.45

Right to Appeal – A new proviso has been inserted with Section 372

whereby the victim shall have the right to prefer an appeal against any

order passed by the Court acquitting the accused or convicting for a lesser

offence or imposing inadequate compensation. Having regard to the

history of legislation and the case law it is strongly felt that the right of

victim limited to three categories is intended to be absolute and that it is

in consonance with the aim of the legislature to protect the victims.

Victim Compensation Scheme – A new Section 375 A was incorporated

in order to provide for the State Government to prepare in co-ordination

44

154th

report, Law Commission of India. 45

See Section 195A of CrPC.

232

with the Central Government, a scheme called “victim compensation

scheme” for the purpose of compensation to the victim or his dependents

who have suffered loss or injury as a result of the crime. With the

introduction of this scheme the victim has been assured of a

compensation amount.

Earlier provision i.e. section 357 of CrPC was not able to serve its

purpose to compensate the victims or relatives of victims. The scheme is

based on Criminal Injuries Act, 1988 of Britain, whereby a Compensation

Scheme was incorporated to compensate the victims.46

Also, the Law

Commission of India in its 152nd

Report and in the 154th

Report suggested

this scheme. Thus, right to compensation becomes a reality for the victim

and this is bound to bring a radical change in the access to justice.

5. (11) Lacunae Existing in Our Criminal Justice System to Protect

the Rights of Victim

There are a number of issues, which have to be addressed and

included in our Criminal Justice System to reinforce and strengthen the

rights of victims. The Law Commission of India in its 154th

report on

Code of Criminal Procedure, 1973 in the year 1996 and the Malimath

Committee on Reforms of Criminal Justice System, 2003 had also

highlighted some valuable points which are absent in our Criminal Justice

System. The major lacunae have been discussed below.

Right to Participate in the Proceedings

In the existing criminal justice system, a crime victim does not

have any significant role to play in the criminal process. The investigation

process is exclusively a police function and the victim has a role only if

the police consider it necessary. This is the time where victims need

46

Ss 126 – 142 of Powers of Criminal Court (Sentencing) Act, 2000; see also Part VI (Financial

Penalties and Orders)

233

assistance at most but the law is silent on it. Similarly, a

complainant/informant does not have any say if the Magistrate, on receipt

of a final investigation report (charge-sheet) from Investigating Officer

recommending dropping of the case, is inclined not to initiate action

against suspect / accused. The Code, in no way, requires the Magistrate,

to hear the victim / complainant/informant.47

However the Supreme

Court, plausibly realizing the statutory lapse mandated that a Magistrate

should not drop proceedings without giving notice to the parties adversely

affected. It is just and necessary that, the Apex Court asserts, these parties

should be heard before making an order of dismissal of the complainant48

.

The existing law only envisages the prosecutor appointed by the

State to be the proper authority to plead on behalf the victim. However,

the Code does not completely prohibit a victim from participating in the

prosecution. A counsel engaged by the victim may be given a limited role

in the conduct of prosecution, that too only with the permission of the

Court.49

And a crime victim may be permitted to submit, with the

permission of the court, written arguments after the closure of evidence in

the trial.50

Thus, the Code restricts direct participation of the victims

lawyer in the trial.

Information to Victims

Owing to ignorance of law or lack of sensitivity, many police

officers at the police station level do not inform the victim of the action

taken by police relating to the commission of the offence reported to the

police station as per provisions of Section 173 (2) (ii) of the Code of

Criminal Procedure. Nor is there any statutory provision to inform the

victim of the progress of the case during trial by the prosecution. It is

47

K. I. Vibhute, Criminal Justice, Eastern Book Company, Lucknow, (2004), p. 381. 48 Public Service Commission v. S. Papaiah, (1997) 7 SCC 614. 49

See Section 301 (2) and Section 24 (8) of CrPC. 50

Ibid.

234

essential one that the police and prosecution may follow such procedure

to inform the victim of the progress of the case during investigation and

trial respectively.

Rehabilitation

The law fails to address the needs of the victim to be treated with

dignity, to sustained protection from intimidation, to readily access the

justice mechanisms, to legal aid and to rehabilitation.51

There is also no

statutory scheme recognizing the rehabilitative needs of the victim of

rape. The Malimath Committee on Reforms of Criminal Justice System

had recommended that victims of rape and domestic violence, require

trauma counseling, psychiatric and rehabilitative services apart from legal

aid. The object is to avoid secondary victimization and provide hope in

the justice system. At the police station level, with or without the

assistance of voluntary organizations, victim support services need to be

organized systematically if the system were to redeem its credibility in

society. The law fails to address the needs of the victim to be treated with

dignity, to sustained protection from intimidation, to readily access the

justice mechanisms, to legal aid and to rehabilitation. There is also no

statutory scheme recognizing the rehabilitative needs of the victims of

rape.

Legal Aid to Victim

There is no provision in the CrPC for providing legal aid to the

victim of a crime. Legal aid is available only to the accused.52

The Legal

Services Authorities Act, 1987 entitles every person “who has to file or

defend a case” to legal services.53

A victim of crime has a right to legal

assistance at every stage of the case subject to the fulfillment of the

51

S. Muralidhan, “Rights of Victims in the Indian Criminal Justice System”, 2004, also available at

http:// www.ierlc.org/content /a0402.pdf. 52

See Section 304 of CrPC. 53

Section 12(1) of Legal Services Authority Act, 1998.

235

means test and the ‘prima facie case’ criteria.54

The right of

representation by lawyer is a constitutional right of every accused55

and

there is no reason why it should not be available to the victim as well.

The Malimath Committee had also recommended that a victim has a right

to be represented by an advocate shall be provided at the expenses of the

State if the victim is not in a position to afford a lawyer.

Witness and Victim Protection

The Criminal Procedure Code recognizes some rights relating to

witness protection but is silent on the point of victim protection. Many

countries like the South Africa56

, France57

and USA58

has set up

provisions for the victim protection. The Rome Statute also mandates the

Court to take appropriate measures for the safety of the victim.59

Bail and Withdrawal of Prosecution

In the granting and cancellation of bail, victims have substantial

interests though not fully recognized by the law. Criminal Procedure

Code may allow a victim to move the court for cancellation of bail,60

but

the action thereon depends very much on the stand taken by the

prosecution. Similarly prosecution can seek withdrawal at any time

during trial without consulting the victim61

. Of course, the victim may

proceed to prosecute the case as a private complainant; but he seems to

have no right to challenge the prosecution decision at the trial stage itself.

The views of the victim are hardly heard while releasing an accused on

bail, even though the grant of bail will be materially prejudicial to his

interests, claims and security.

54

Ss.12 (10 (h) and 13(1) of Legal services Authority Act, 1998. 55

Article 22 (1) of Indian Constitution. 56

Witness Protection Act, 1998. 57

Art. 2-3, 85-91, 114-121, 371-375 Code of Criminal Procedure. 58

Victims of Crime Act, 1984. 59 Art. 68(!) of Rome Statute of ICC, 2002. 60

Section 439 (2) of CrPC. 61

Section 321 of CrPC.

236

Victim Impact Statement

The Code of Criminal Procedure confers a right of pre-sentence

hearing to accused to express his opinion about punishment but the Code

is silent regarding the right of victim to narrate about the loss which he

suffered due the act of accused. The victims also have some say or voice

realting to the quantum of punishment declared by competent court.

The researcher tries to discuss the various hurdles in the path to

give justice to victims of crime and also analyse the lacunae existing in

the criminal justice system especially after the Code of Criminal

Procedure (Amendment) Act, 2008. The amendment brought the number

of changes to protect the rights of victim but still it is essential one to

have more scope for victim to protect their rights and have a proper place

and voice under the existing criminal justice system.

5. 12 VICTIM RIGHTS VIS-A-VIS HUMAN RIGHTS

At first glance one would think there is much common ground

between the victim rights and human rights. Victimology has its main

focus and concern on the social, psychological, financial and physical

well being of victims, including victims of criminal acts and abuses of

power. When we try to trace the history of the international human rights

legal system we found that, it started by adopting general and wide-

ranging human rights Treaties62

as found in the International Bill of

Rights 1966.63

Following this, the international community proceeded to

develop more specific international instruments principally devoted to

certain categories of groups where there was a consensus that such a

group should be entitled to special human rights protection. Such groups

62

These were primarily the ICCPR and the International Covenant on Economic, Social and Cultural

Rights (ICESCR). 63

This also includes the 1948 Universal Declaration of Human Rights (UDHR) and the First Optional

to the ICCPR.

237

included refugees64

, people who suffer from racial discrimination65

and

discrimination based on gender66

, children67

, Indigenous peoples68

, people

with disabilities69

, and people subject to torture or other inhuman

treatment or punishment70

. Just like these other disadvantaged groups,

victims also have their own specific international instrument devoted to

advancing their rights and interests. This is of course what victimologists

refer to as the victims 'magna carta', the Declaration on Basic Principles

of Justice of Victims of Crime and Abuse of Power71

. .

The Declaration is a specific instrument that solely concerns state

obligations towards a broad range of victims - victims of crime and abuse

of power

Another indication that victims rights are human rights is that there

are many examples of victims and their lawyers using the general

provisions of some prominent human rights Treaties to seek redress and

vindicate their rights. These provisions do not mention the word victim

directly, and consist of a number of commonly accepted human rights

protections, such as the right to life, the right not to be subject to torture

or inhuman or degrading treatment, the right to security of the person, the

right to privacy and equality before the law.

In the USA and Australia, State and Territory governments that

have the primary responsibility criminal justice have taken many steps to

ensure that the international standards articulated in instruments such as

64

The primary international instrument protecting such people is the Convention relating to the Status

of Refugees 1951. 65 The primary international instrument protecting such people is CERD. 66

The primary international instrument protecting such people is CEDAW. 67

The primary international instrument protecting such people is the Convention on the Rights of the

Child 1989 (CROC). 68

The primary international instrument protecting such people is the Draft Declaration. 69

The most recent international instrument protecting such people is the Standard Rules on the

Equalization of Opportunities for Persons with Disabilities, General Assembly Resolution 48-96, 20

December, 1993. 70

The primary international instrument protecting such people is CAT. 71

G.A. res. 40/34, annex, 40 U.N. Gaor Suup. (NO.53) at 214, U.N. Doc. a/40/53 (1985).

238

the Declaration have become a reality. In the USA about 33 State

governments have passed Constitutional amendments to advance the

protection of victims' rights72

, and all State governments have enacted

legislation in one form or another that covers the treatment of victims

during the criminal justice process.

In Australia, the South Australian government in 1985 instituted an

administrative 'Declaration of Victims' Rights' that provided for certain

rights of crime victims in relation to criminal justice and other processes.

In India, some rights of victim are set up as fundamental rights and

directive principles in constitution of India.

It is certainly true that traditionally human rights proponents have

tended to focus particularly on the duty of states to protect the rights of

people living under their control by preventing human rights violations

committed by the government itself or its agents. This is often referred to

as the 'vertical' operation of human rights. There is some evidence,

however, that human rights advocates and scholars are taking much more

notice of violations committed by individuals against other individuals,

and the resultant responsibility of states to prevent such violations, from

occurring. This is often referred to in the literature as the 'horizontal'

application of human rights. One obvious example is that many feminist

scholars have insisted that 'Crimes such as domestic violence and child

abuse, even though committed by individuals against other individuals,

should be part of international human rights considerations, primarily

because the state has not done enough to prevent such victimisation. Even

though the state might have criminalised such behaviour, the argument is

that it bears some responsibility for creating the type of male dominated

society where such crimes seem to flourish. The State also is responsible

for the criminal justice system that makes it particularly difficult for

72

See Karmen Andrew, An Introduction to Victimology, 5th

ed., Wadsworth Publishing, (2004), p. 109.

239

victims to report such crimes, and where they do, to then proceed with

their further involvement in the system. At a theoretical level, the

argument is that the public/private dichotomy also pervades human rights

discourse, and the historical exclusion of individual wrongdoing from

human rights consideration has led to the marginalisation of the main

forms of harms that women and children face around the world. An

indication that such arguments are being taken seriously by the

international community is the agreement of the UN General Assembly to

the 1993 Declaration on the elimination of violence against women.73

In more recent times, owing to international criminal justice, more

victimologists are becoming aware of the needs of victims of government

wrongdoing, including the victims and survivors of international crimes

such as genocide and crimes against humanity. Logically there is a great

deal in common between victims of the typical domestic crimes (like

assault and burglary) and victims of international crimes, and it is thus

artificial to separate the two types of victims. Both types of victims are

likely to suffer similar psychological, social and financial losses,

although, if anything, the psychological losses for victims' of

international crimes are likely to be greater because these crimes are a

result of state policies. This means that, unlike most domestic crimes,

these crimes have been directly been sanctioned and even organised by

the state, and this is likely to produce an extra detrimental psychological

effect. Then, comes the arguments against proposition that victims rights

are human rights.

The important argument is that all victims rights clash with

accused and convicted person's rights. But in fact, the majority of victims

rights does not clash with the rights of accused people, and so for at least

these victims rights there is not problem in terms of offending these

73

Adopted on 20 December 1993, GA Res 48/104.

240

rights. For example, Sara Faherty74

classifies crime victims rights into

three groups. The first category is the general right to be treated with

respect and sensitivity, as well as 'minor conveniences' rights : such as

comfortable courthouse waiting rooms, on-site day care, transportation

services, and fewer time delays, along with needs such as protection from

intimidation by the offender.

Her second category is informational rights and the right to be

present during proceedings, rights that she also regards as of little effect

on the rights of accused persons, although they clearly impose a greater

burden on the state. Her third category of victims rights is 'participatory'

rights that she does acknowledge are much more controversial because

they may adversely affect the rights of accused and convicted persons.

Clearly under Faherty's classifications, two out of three of her categories

of victims' rights do not clash with the rights of accused people or

prisoners.

Well known victimologist Andrew Karmen classifies victims rights

more in terms of whose expense they may be. He refers to two primary

categories - those gained at the expense of accused persons, which clearly

may clash with the rights of accused persons, and those gained only at the

expense of the State. Victims rights in the latter category includes rights

to obtain information concerning criminal justice decisions and processes;

to be treated with respect, sympathy and understanding by criminal

justice officials; to call upon psychological and practical support and

services in the period following the offence; and to receive compensation

from the state in cases of criminal violence.75

Again, these rights

constitute the majority of victims' rights and do not generally clash with

74

Sara Faherty, Victims and Victims Rights, Chelsea House Pub. (1999), p. 120. 75

Ashworth A., ‘Victim Impact statements and Sentencing’, Criminal Law Review, (1993), p. 499.

241

the rights of accused persons, and are in the main supported by the

community and criminal justice professionals.

What is perhaps more likely to occur in many situation is that the

courts will interpret or read down the pro-victim measure in such a way

that does not infringe human rights, and the measure will be acted upon in

perhaps a much more limited or circumscribed manner. The overall effect

of this is that in such situation victims rights are subject to the rights of

accused persons, and there seems to be no problem with victims and

accused rights potentially clashing. Provided care is taken in introducing

victims' rights, they are able to coexist with the rights of accused persons.

One thing we should not forget that our judiciary administer our

criminal justice system. In India, we follow the Adversarial Criminal

Justice System and the important feature of this system is the ‘fair trial’,

where both the parties i.e. accused and victim get equal chance to put

their submission before the competent court. More important is that the

accused enjoyed more rights even the rights in the form of fundamental

rights to prove his or her innocence. So it is wrong to say that the victims

right might infringe the rights of accused persons.

Ultimately we can say that accepting the victims' rights as human

rights has important implications for crime victims and their advocates.

They will be able to approach courts, tribunals and other administrative

bodies, and government agencies and bureaucrats, with claims for various

rights found in international instruments and national legislation and

guidelines.

So, the human rights are thus victim's rights while they may have

different emphasis, they do complement each other and clearly those

working in both areas need to work together towards the goal of

achieving better outcomes for both accused persons and for victims of

crime.

242

The extent to which human rights are respected and protected

within the context of judicial proceedings of a State is an important

measure of its society's civilisation. Another important aspect is to what

extent the human rights of the accused and victim be protected. Over

emphasis on the protection of one interest is bound to have an adverse

impact on the other and therefore, an even balance has to be struck

between the two interests. The law and judiciary are entrusted to find the

dividing line so as to harmonise the two interests without causing

detriment to anyone. By and large the Supreme Court, of our country has

through progressive and humanistic interpretation, enlarged the rights of

the accused and victim of judicial administration with a view to protect

the interest of the innocent and sufferer and preventing abuse and misuse

of police powers.

It is one of the most important duties of the State and all its organs

to provide justice and correct institutional and human errors affecting

basic needs, dignity and liberty of human being. Fortunately, India has a

pro-active judiciary which always takes the initiative to protect the human

rights of various victims of crime. It can well be aspired that in the times

ahead, people have right to live with dignity, as a true human being,

without being victimized, will further be strengthened.