Introduction
The majority of the time, we seek answers to problems without first completely comprehending the problem’s existence, substance, and dimensions, much alone the causes that precipitated its emergence. Concern for victims’ rights has been muted for some time. Over time, the rights of the victims have emerged as a central issue. From the time an offence is reported to the investigative agency until charges are filed and a trial begins, the role of victim is eclipsed by the prosecuting officials.
Historical Background of Criminal Law
In the past, when someone was wronged, the victim would often bring the perpetrator to court to seek retribution. At some point, criminal activity came to be considered as an interruption of “King’s peace,” which hurt not just the individual victim but the whole community as a whole. The State, as the guardian of the community, took up the cause of the victim in the criminal prosecution. Now, to avoid the likelihood of State abuses, some ideologies favouring the accused person, with the goal of guaranteeing that they are not reduced as sub-human on account of criminal charges, began forming gradually.
Shift Towards Accused-Centric Justice
It should be highlighted that criminal law has generally been seen In the past, the legal process primarily focused on adjudicating between the accused and the State, often disregarding the victim, who bore the brunt of the crime’s impact, and treated them as a mere bystander.
Emergence of Victims’ Rights
Nevertheless, the evolution of victim’s rights jurisprudence has brought about a significant transformation. Now, victims have a greater opportunity to be heard and participate more extensively in criminal proceedings.
International Recognition
- Resolution 40/34 of the United Nations General Assembly adopted the UN Declaration of Basic Principles of Justice for the Victims of Crime and Abuse of Power in 1985, which bolstered the victim advocacy movement.
- Other international agencies, such as the European Union, helped propel the movement forward by giving victims a voice inside the scope of the criminal law system.
- In 1984, the United States of America enacted the Victims Crime Act, and in 1990, the Victims Rights and Restitution Act, both designed to grant crime victims access to the judicial system.
- Similarly, the South Australian Victims of Crime Act, 2001, in Australia, and the Canadian Victims Bill of Rights in Canada share the common objective of providing support and rights to victims of crime.
These laws have broadened the area of involvement and increased the victims’ rights.
Challenges Faced by Victims
From the time the crime is committed and the victim files the FIR, when he or she is at the mercy of the police officer, until the time when justice is served, the victim faces several obstacles.
- Bodily harm
- Mental harm
- Emotional harm
- Financial harm
The victims and their loved ones, as well as any potential witnesses, suffer not only bodily but also mental, emotional, and financial harm. A lack of a competent procedure to assure the safety of the victim and other persons who are impacted by the process makes an already trying situation intolerable. When investigating a crime, the State usually cares more about the criminal than the victim. However, effective protections for the protection of victims are crucial for a well-functioning criminal justice systems.
Law Commission And Reforms
The 154th Report of the Law Commission of India elaborated on the topic of victim compensation in the context of a compensation plan. In 2003, suggestions for a unified criminal justice framework were released by the Committee on Reforms of the Criminal Justice System. This would help rebuild public trust in the system.
Objective Of The Article
Therefore, this article’s goal is to examine the issues that victims experience in receiving justice, compare their rights to those of the criminals in various jurisdictions, and provide workable remedies to these issues.
Victim’s Rights Under The Indian Criminal Justice System
As a rule, the interests and rights of the victim are overlooked as the State and its agents focus on punishing the offender. The United Nations General Assembly approved the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power to guarantee the fair administration of justice for those who have been wrongfully accused or victimised by criminal acts:
UN Declaration — Basic Principles
- Access to justice and fair treatment
- Restitution
- Compensation
- Assistance
Without exception, each criminal justice system must provide victims with the right to obtain justice, fair treatment, compensation/restitution, and the necessary help. These sanctuaries are recognised in India’s criminal court system as well, although victim rights are often overlooked.
Stages Of Criminal Case
In a criminal case, there are three distinct phases:
| Stage | Description |
|---|---|
| Pre-trial | At the moment, research is being done. |
| Trial | If the individual is found guilty after the investigation, the matter will be brought before a magistrate. |
| After The Trail | If the individual is dissatisfied with the decision made by the lower court, they may file an appeal with the appellate court. |
Pre-Trial
To expedite the judicial process and cut down on trial expenses, disagreements are often tried in front of a judge, an arbitrator, or a third party. Custody, a court judgement, or a first appearance before a municipal judge are all examples of events that occur before a defendant goes to trial. In the event that the issue cannot be resolved outside of court, the case will be filed with the court and the trial will begin.
Rights Of A Victim Vs Rights Of An Accused During Pre-Trial
The criminal justice system is more heavily weighted towards shielding the “accused “than is fair, as may be shown by a casual reading of the relevant statutes. The State should pay close attention to what he has to say, and if his guilt is established, it should do all in its power to make sure he is punished.
Protections For The Accused
Protecting the accused from needless harassment, the Criminal Procedure Code includes rules like Section 56 and Section 76, which require the accused to be brought before a court judge within 24 hours after detention.
- Mandatory production before Magistrate within 24 hours
- Protection from illegal detention
- Prevention of custodial harassment
In certain circumstances, the state may be required to provide the accused with legal representation, while in others, the accused has the right to choose his own counsel. According to Article 22(1) of the Indian Constitution, no one may be prevented from speaking with a lawyer of his choosing if he has been detained. Sections 303 and 304 of the Criminal Procedure Code embody this fundamental mandate.
As per Article 39A, the State guarantees free legal help and a guarantee for furthering justice on the basis of equal opportunity.
Bail Rights Of The Accused
In India, the criminal law guarantees the accused the right to bail. It is the defendant’s legal right to request bail for bailable offences under Section 436. Bail is generally liberation from restriction, more notably, release from custody of the police.
- Release from police custody
- Freedom to resume normal activities during trial
- Bail often granted routinely in bailable offences
Whether or not an offence is bailable determines whether or not bail may be granted under Section 389(1) following conviction. In cases when bail may be granted, it usually happens without much of a fuss. In cases where a charge sheet is required but has not been submitted within sixty days, the Magistrate has the discretion to grant bail without informing the opposing party.
Rights Of Victims In India
Regrettably, the Indian criminal justice system lacks clear and well-defined rights for the victims.
India currently lacks a legal provision that addresses the rights of victims to be treated with compassion and dignity, as well as the protection of victims and their families from harassment and intimidation initiated by the accused, in order to ensure that complete justice is served to the victim.
The victim is represented by a State Prosecutor who is selected by the state government. Also, in 2008, a change was made to Section 24 (8) of the Criminal Procedure Code. A victim’s choice of counsel to work with the state’s attorney is now mandatory thanks to the amendment.
An individual victim may choose his or her own private attorney; but, that attorney’s scope of practise may be limited. Following the recording of the evidence and with the permission of the court, the attorney may submit written arguments.
Limitations On Victims During Investigation
- Victims are not obligated to be consulted by investigators
- No right to know investigation status before charge sheet
- No advice on conduct of investigation
- No input between FIR and police report
Because conducting an investigation is within the purview of law enforcement, victims are not obligated to be consulted by investigators at any point. Whether or if they help with the inquiry is up to the authorities that are conducting the probe. The victims have no legal standing to inquire about the investigation’s status prior to the filing of a charge sheet.
Withdrawal Of Prosecution And Bail Impact
As a matter of law, the court is not required to listen to the victim while deciding whether to grant or revoke bail. There is little chance for the victim since he or she must go via the public prosecutor to seek cancellation of bail under section 439(2), and the result of the procedure rests heavily on the stance taken by the prosecution.
In same fashion, when the prosecutor chooses to drop charges, the victim has no voice. The prosecutor may withdraw from the case in its whole or with relation to a specific crime or offences under Section 321 of the Code. At this point in the proceedings, it seems that the victim has little recourse to oppose the prosecution’s position.
International Practices
However, in certain nations, including the United States, victims of crime are guaranteed access to justice without undue delay.
To counter this, in 1996 Canada passed the Victims of Crimes Act, outlining a victim’s entitlements in the pursuit of redress. Victims are entitled to receive respectful and dignified treatment, with the assurance of maintaining their confidentiality, alongside other rights. The victim and his loved ones should be shielded from any further harassment or intimidation by the perpetrator and his henchmen.
Victims of crime are afforded legal protection in all nations, including the United States and the United Kingdom. This safeguard encompasses the entitlement to receive fair and respectful treatment, while also upholding the victim’s dignity and privacy.
However, in nations with more victim-centred judicial systems, such as the United Kingdom and the United States, victims are included at every stage of the case. On the other hand, UK, USA & Canada consider the role of the victim even during grant of bail, parole or release of the accused.
Supply Of Documents And Transparency
When the investigation is complete, a copy of the report must be sent to the Magistrate and given to the first informant as required by the Criminal Procedure Code. This rule is often broken by police, nevertheless.
A provision should be included requiring the engaged police officer to submit a copy of the report to the victim upon request, regardless of whether or not she is the first informant, to ensure that all of the above conditions are met.
On the other hand, the accused has the legal right to acquire a copy of all the paperwork the prosecution has submitted as evidence in a criminal case. This promotes openness and fairness and helps the accused form a solid defence.
Constitutional Protection
Article 21 protects people from wrongful death and incarceration by requiring the state to recompense victims of criminal violence.
Comparative Overview
| Aspect | Accused | Victim |
|---|---|---|
| Legal Representation | Right to lawyer of choice | Limited role through prosecutor |
| Bail Hearing | Heard by court | No mandatory hearing |
| Investigation Participation | Protected by law | No participation rights |
| Access To Documents | Full access | Limited access |
| Withdrawal Of Case | Protected by procedure | No effective objection |
Trial Stage
In situations involving a warrant, a magistrate will preside over the trial. In cases involving a summons or a summary trial, a judge will hear the case. If a party is dissatisfied with the trial’s outcome, only then does the matter advance to the post-trial stage.
Rights Of The Victims Vis A Vis To The Rights Of The Accused During The Trial Stage
The right to legal counsel is guaranteed to anybody who is accused of a crime in our nation, but the victim is not permitted to sit in on the trial. Criminal justice treats victims as if they were only an informant who started the process rolling. Their only function is that of a witness for the prosecution. The victim does not have any input on the prosecution process, which is handled by a prosecutor selected by the state.
Although the victim has a fundamental right to counsel under Sections 24(8) proviso14, 301(2), and 302 of the Code, he may only participate in the trial by way of his pleader and not as a direct participant. The designated pleader will have a minor part in the prosecution. He needs the public prosecutor’s approval before he can take any action, and he must follow their instructions.
With the court’s approval, the victim’s pleader may submit written arguments after the conclusion of the presentation of witnesses and other evidence. Victim has no right to present evidence, including the opportunity to cross-examine witnesses or make any arguments designed to sway the decision-making process.
Rights Of The Accused During Trial
Conversely, an accused person enjoys the privilege of being present during his or her trial. The accused person or his criminal defence attorney must be present for the recording of any statements or evidence under Section 273.
Comparative Position In Other Countries
In the United Kingdom, the United States, and Canada, unlike India, the victim is not only involved in the legal process during the trial but also remains engaged in the postconviction phase. A victim has a right to know how an offender’s case is proceeding and whether or not the court is considering parole or release for that criminal. In addition, the victim has the legal right to have his rights as outlined above really implemented.
Victim Compensation
Victim compensation is one of the primary components in restoration of the loss or injury given to the victim due to the conduct of the crime. A victim’s pain may be lessened in some measure by financial aid of some kind.
The Code’s Sections 357 and 357A serve as a central clearing house for victim compensation.
- The court that hands down the sentence has broad discretion under Section 357(1)(b) of the Code to utilise all or part of the fine levied against the defendant to compensate the victim of the crime for any loss or harm caused by the act.
- Subsection 357(3) is similar in that it permits compensation to be paid even if a fine is not imposed.
- If the victim has incurred any damages as a result of the crime, the court may order the defendant to compensate them.
In 2008, the Code was amended to include Section 357-A, which, for the first time, enabled compensation to be paid from State funds even if the accused cannot be located or convicted, thereby rectifying the problems with the original version of Section 357. While the compensation due under Section 357 Cr.P.C. is punitive in character, the amount paid under Section 357A is rehabilitative.
- If the victim receives an insufficient reward under Section 357, or if the case results in an acquittal or release and the victim must undergo rehabilitation, the court may make a recommendation for a larger award under Section 357-A (3).
- In cases where the identity of the accused remains unknown, and no trial has taken place, the victim still has the option to request the State/District Legal Services Authority for compensation under Section 357A(4).
In accordance with Section 357A, each state’s government must develop a plan to compensate victims. Together with the Federal Government, such a plan must be drafted. If a court decides a victim is entitled to compensation, that amount will be determined by the District/State Legal Services Authority as soon as possible.
In spite of this, there has been a general reluctance on the part of courts to exercise the power under Section 357 to the benefit of the victims. Somehow, the courts have limited themselves to award of sentences with no mention of adequate compensation, thereby denying victims the basic right. (Hari Krishnan and State of Haryana v. Sukhbir Singh, 1988,Supreme Court of India)
International Practices
| Country | Practice |
|---|---|
| England | State-run compensation programme for crime victims (1964) and Criminal Justice Act (1972) mandated offender payment |
| United States | Victims of Crime Act (1984) created Crime Victims Fund financed by criminal penalties, forfeited bail bonds, penalty fees and assessments |
| Canada | Not all provinces and territories have victim compensation programmes and existing programmes are inadequate and disconnected |
But if the Magistrate determines that the charges were unfounded, and the case was opened based on a complaint or information provided to police or the Magistrate, then the Magistrate might impose compensation for the acquitted defendant under Section 250 of the CrPC.
Sentencing Stage
While an accused has the right to be heard on the matter of penalty, the Code is silent on whether or not the victim should be present during sentencing in India.
At the sentencing hearing, the victim is given the opportunity to speak in nations such as the United States and England. The victim informs the court about the impact the incident has had on him in what is termed a “Victim Impact Statement” in the United States and a “Victim Personal Statement” in England. The victim in Canada, like in England, has the right to write a Victim Impact Statement that the court might consider when deciding on a sentence.
Post-Trial Stage
The post-trial stage, although not explicitly mentioned in the Code of Criminal Procedure 1973 (CrPC), is recognized as the third stage in criminal law. However, if pressed for a definition, “post-trial” might be thought of as the time period after a trial has ended and the judge has announced his or her verdict. One of the most significant rights at this stage is the right to appeal.
Rights of the Victim Vis A Vis Rights of an Accused During Post Trial Stage
The CrPC of 1973 does not explicitly define an appeal in its strict sense. According to Merriam-Webster, “appeal” is the phase of a legal process in which the case is being heard by a higher court. Another definition is the process by which a losing party petitions a higher court to overturn a lower court’s judgement.
Victim’s Right to Appeal
Previously, the State could only appeal an acquittal under the Code’s previous structure. However, in 2008, the ability to appeal was expanded to include victims of crimes by adding a proviso to Code Section 372. A victim of crime has the right to appeal if the accused is acquitted, if the accused is found guilty of a lesser charge, or if the victim is not adequately compensated. It is not necessary to get special permission in order for the victim to exercise his or her right to appeal the acquittal ruling. The right of the victim to appeal for an increased punishment remains the State’s discretion under section 377 of the Code, which is not affected by the aforementioned provision.
Appeal by Accused
- When the High Court, in the exercise of its original criminal jurisdiction, issues a final order of conviction, the accused may appeal the decision to the Supreme Court.
- An appeal may be taken to the High Court from a conviction in the Court of Session or Additional Court of Session.
However, no appeal shall be sought in circumstances when the accused pleads guilty before the High Court and the same is recorded by the Court. Minor offenses, which are characterized as offenses that can result in a maximum penalty of six months of imprisonment or a fine of Rs 1000 or both, do not fall under the purview of appeal in the High Court, as per Section 376 of the Code.
If the accused is found guilty, they have the right to be heard on the issue of punishment, and it is only at that point that the judgement is final and may be appealed under Section 374 of the Code of Criminal Procedure. The right to appeal a finding of guilt eo instanti is not guaranteed by either the Constitution or any statutes.
Comparative Position in Other Jurisdictions
United Kingdom
In certain (but not all) situations where a sentence was handed down in the Crown Court, the defendant may petition the Attorney General to have the matter reviewed by the Court of Appeal. This may only be done if the Attorney General feels that the sentence was not simply lenient but ‘unduly lenient’, such that the sentencing judge made a major mistake or issued a term beyond the range of penalties properly possible given the circumstances of the case. The case goes to the Court of Appeal if the Attorney General thinks the sentence is too light. The same holds true for a criminal defendant who has been convicted; he or she may file an appeal.
United States
Criminal convictions may only be appealed by the defendant in most U.S. states, including Georgia. In certain regions, the prosecution only has the option to appeal certain rulings. After a criminal defendant has been found guilty at trial, they may file an appeal. Prosecution appeals after a decision in which the defendant is acquitted are often not allowed due to the U.S. Constitution’s prohibition on double jeopardy (i.e., being tried twice for the same offence).
Restitution
Restitution is the process of returning a victim to their pre-incident state. In accordance with the law, fair restitution is anticipated to be granted to victims, their families, or dependents. This includes the restitution of property or compensation for the injuries or losses suffered, reimbursement of expenses incurred as a result of the victimization, and more. It’s important to note that “restitution” is not currently established as a standardized sentencing option, alongside other criminal penalties. The decision of whether to include restitution in a sentence ultimately rests with the discretion of the court.
Nevertheless, victims of crimes in the United States are entitled to receive complete and prompt restitution under specific legal regulations.
Suggestions
When public prosecutors in India take on too much work, they can’t provide the results their clients need. Given the existing state of affairs, it’s likely that there aren’t enough public prosecutors to handle the amount of cases that need to be handled. In order to get positive disclosures, private counsel may invest time and energy into assessing the personalities and qualities of witnesses. However, without jeopardising the rights of the accused, it is vital to increase victim participation by allowing private counsels a greater say in the trial’s conduct.
Fair Trial Under Article 21
Article 21 of our Constitution establishes the right to a fair trial for every citizen, including the victims of the case, and the scope of a fair trial includes the use of all legal means to ensure that the accused receives a just and impartial trial. Therefore, the rejection of the private prosecution’s ability to cross-examine witnesses in a criminal procedure by the highest court is inconsistent with the requirements of a fair trial and violates the victim’s fundamental right under Article III of the Constitution. The Supreme Court has committed “secondary victimisation” by restricting the rights of criminal defendants to retain private legal representation.
Victim Protection And Policy Concerns
Many nations have made significant progress towards better treatment of victims of power abuse and crime since the introduction of the Declaration of Basic Principles of Justice for Victims of Power Abuse and Crime. However, there is still an overall deficiency in legislation designed to aid crime victims. The possible absence of political will to take action in this area may be to blame. When formulating policies to support victims, policymakers must ensure that specific key factors are not overlooked. Taking precautions to protect the victim’s right to privacy, dignity, and freedom is essential as they pursue justice.
Social Stigma And Awareness
Once the case is initiated, it implies that the victim is left to fend for themselves. The victimisation of such a person extends well beyond the punishment he receives for his crime, and includes the stigma and scorn he faces in his daily interactions with society. People’s reluctance to disclose crimes may have its roots in the social pressures they face. Precautions must be made to ensure the victim is not stigmatised in any way. Having laws in place to penalise these kinds of crimes by the community is beneficial, but so are awareness camps.
Restitution Vs Compensation
Restitution and compensation are treated same in the Indian criminal justice system. Restitution is a form of remedy in which the offender is responsible for making amends, while compensation is provided by the State.. The victim should be able to seek compensation from the criminal, the state, or both for any costs he suffered as a result of the crime, including but not limited to financial, physical, and emotional losses. The line between compensation and restitution has to be drawn here.
| Aspect | Restitution | Compensation |
|---|---|---|
| Who Pays | Offender | State |
| Purpose | Making Amends | Financial Support To Victim |
| Nature | Direct Accountability | State Assistance |
Role Of The State
Crime victims in India have legitimate needs, and the country’s legal system should adapt to meet those needs. The State has an obligation to make every attempt to include the victim in the criminal investigation and prosecution. In this way, the victim may be certain that she is not being overlooked.
The State is clearly shown to have a significant role in the Indian criminal justice system. Giving the victim a prominent role throughout the process and beyond is crucial to ensuring that justice is done right.
Conclusion
The victims of crime have received attention of law makers worldwide. The demands of victims of crime have been the focus of legislation in several nations. The concept that justice might be reformative for the accused is a relatively new one, yet it is gaining traction in many countries. However, this does not imply that the legal system as a whole should ignore the victim’s needs and rights. Though we can state that important reforms have been implemented to ensure that the interests and rights of the victim are not entirely overlooked in the process of providing justice to the victim, there is still a long way to go. Similarly, the rights of the accused are given high priority in the Indian criminal justice system. While the rights of inmates are guaranteed, the victim receives comparatively less attention. Although today’s criminal justice system is intended to deter criminal behaviour and rehabilitate offenders, it often fails to account for the most tangible consequence of crime: the victim.
Since the United Nations Declaration came into effect, there has been a push in India to acknowledge the needs of crime victims. Crime victims now have their own voice in the criminal justice system thanks in large part to the efforts of the judicial system. When it comes to providing victims of crime with enhanced procedural protections, the judiciary has surged ahead of the legislative. The Law Commission and the Malimath Committee both made recommendations in favour of the courts taking the initiative they did. Of late, the Legislature has introduced several major modifications in the procedural criminal legislation to alleviate the condition of crime victims. Significant amendments to the Code of Criminal Procedure in recent times have introduced several crucial changes. These include:
- The mandatory requirement for reporting crimes
- Permitting victims’ legal representatives to appear in court
- Granting victims an independent right to appeal
- Providing compensation even in cases where the accused cannot be located or when they are acquitted or discharged
- The establishment of a Victim Compensation Scheme
In this evolving legal landscape, victims are increasingly recognized as individuals possessing procedural rights that can drive the criminal justice system, rather than being solely considered as informants or witnesses for the prosecution.. However, there is still a need for a countrywide programme for crime victims, similar to laws passed in other countries that acknowledge victim involvement throughout the whole criminal procedure. It is crucial that we not forget about the victims if we want our judicial system to be in accordance with the notion of natural justice. Equally, if not more so, crucial are the victims’ rights to have their interests protected.
Written By: Ms. Aditi Pandey is an Assistant Professor. She holds an LL.M from The West Bengal National University of Juridical Sciences (NUJS), Kolkata, and a B.A. LL.B (Hons.) from Maharashtra National Law University, Aurangabad. Views are personal.
