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Rights of Victims under the current Criminal Justice System

On November 29, 1985, the 96th Plenary of the United Nations recognized the Declaration of the Basic Principles of Justice for Victims of Crime and Abuse of Power, and the need to determine standards and norms in International law for the protection of crime victims. The UN Declaration recognizes four key elements of the rights of victims of crime.

Firstly, access to justice and fair treatment, secondly, rehabilitation or restitution, thirdly compensation and fourth aid/assistance. The UN Declaration binds member states in granting various rights to victims of crime in consonance with the declaration.

The law on victim rights is still inadequate and not as per the declaration. However, the provisions included in the Indian legal system are accompanied by judicial decisions that take the shape of law. The various provisions of the Indian legal system are a step towards the advancement of the rights of the victims.[1]

Rights under the Criminal Procedure Code
Under Cr.P.C victim means a person who has suffered any loss or injury as a result of any action or omission done by the accused. The victim also means his or her heir or guardian. Keeping this definition in mind the Code provides for several protection and rights to victims.

Under Section 160 of the Code, a woman or man under the age of 15 shall not be under an obligation to attend any place other than the place where such woman or man resides. Although this provision does not apply to a woman or child who is suspiciously selected, In the case of Nandini Satpathy[2], the Supreme Court emphasized on the compelling nature of this requirement.

The Code under Section 439 mentions that the victim has an opinion in granting bail to the accused. Section 439 (2) of the Code of Criminal Procedure, as explained by the courts, gives the plaintiff or the aggrieved party the right to move the High Court to get the bail granted to the accused, revoked. In S.A. Kareem v. State of Karnataka[3], The Supreme Court in Karnataka has acted at the behest of the father of the police officer, who was killed by a gruesome forest brigade and set aside a trial judge’s order to withdraw the prosecution.

According to Section 301 (2) of the Code, the lawyer of the private party must act in accordance with the order of the Public Prosecutor and submissions may be made by him in writing with the permission of the court after closing the evidence. However, according to the Code of Criminal Procedure, the informant of the victim or her lawyer will not be allowed to participate in the investigation.

Likewise, Section 162 of the Code of Criminal Procedure provides protection against police intimidation. Under Section 25 of the Evidence Act 1872 the statement of a witness to the police in the investigation is not admissible as an evidence. Moreover, Section 163 of the Criminal Procedure attempts to protect a witness from a persuasive threat or promise made or promised by a police officer or other person in authority.

Under Section 311 of the Code of Criminal Procedure, a witness may be summoned and re-examined if his evidence is deemed necessary for a fair decision of the case. However, these circumstances are very rare even when the court finds that the witness is subject to explicit threats and intimidation. Section 154 (2) of the Code of Criminal Procedure provides for a copy of the FIR immediately and freely to the victim / informant.

Following which under Section 154(3) if the police officer refues to take an action on the FIR, the victim can inform the Superintended of Police. Furthermore, If the complaint procedure fails, under section 190 of the Code of Criminal Procedure, the victim may file a complaint to the Magistrate, who will examine the complainant and investigate the case or conduct a direct inquiry by the police. Sections 200 and 202 of the Criminal Procedure Code make it a punishable offense for a public servant to fail to act on a complaint of a member of a Scheduled Caste or Scheduled Tribe. And under Section 406 of the Code of Criminal Procedure, the victim or plaintiff may apply to the Supreme Court to transfer the trial to confirm and ensure free trial[4].

The Code of Criminal Procedure still does not cover entirely the rights of victims. The code has proven in many respects that its provisions are not adequate to meet the needs of the victim. This is the accusation of the common people. When the victim escapes a crime and reports the victim to the police, his sufferings begin again. He faces humiliation and loss of income at the hands of the public, including police officers and lawyers. Specialy when the victim is a woman.

Rights under other Legislations
Section 4 of the SC, ST (Prevention of Atrocities) Act, 1989 is an important provision. This section provides that it is a punishable offense if a public servant deliberately fails to comply with a complaint of a member of a Scheduled Caste or Scheduled Tribe. Under this law, compensation is mandatory for victims, and many other reliefs depending on the cruelty. Victims will get full compensation from Rs 25 thousand to Rs. 2 lacs depending on the severity of the offense.

As per Section 9 of the Evidence Act, the plaintiff shall not participate in the investigation unless called upon to verify the identity of the accused after the magistrate has taken cognizance of the case. Under the same Act Section 114A is very significant. This section provide that when a woman who was raped says in her evidence that she did not consent, it is to be presumed that she did not give consent.

Recognizing the need to preserve the dignity of the victim, some token amendments have recently been made, repealing Section 155 (4), which allowed impeachment, indicating the general immoral nature of the prosecutor. Section 228A of Evidence Act prohibits the disclosure of the identity of the victim in any publication related to the crime. There are no provisions in law to make camera trials mandatory when the victim is a child/woman.

Section 12 (1), 13 (1) of the Legal Services Authority Act, 1987 provide for legal aid to victims. Although there are no provisions in the Criminal Procedure Code to provide legal aid to the victims of crime, these section require that every person filing or defending a case has the right to legal assistance. The victim of a crime has the right to legal assistance at every stage of the case, subject to the prima facie case and means test criteria.

Section 195-A of the Indian Penal Code states that threatening or inciting any person to give false testimony is an offense punishable by up to seven years imprisonment and is considered non-bailable offense. This response of the government is temporary, it is not enough because it has failed to address all the issues raised by the crime victims.

There are significant implications in the form of new laws to promote the cause of the victims and reduce the suffering of women, children and the elderly who are the weaker sections of the population. Laws recently passed by Parliament have a decisive impact on the prevention and relief of victims.

The Protection of Women from Domestic Violence Act, 2005 is an essential act in the field of promoting the rights of female victims. The Protection of Women from Domestic Violence Act is a major tool of the women’s movement for the protection of victims of domestic violence after years of struggle. The aim of the law is to provide more effective protection of the rights of women guaranteed by the Constitution.

The definition of domestic violence is adequate to include physical, sexual, verbal and psychological abuse. A feature of this law is that the use or enjoyment is prohibited on the basis of domestic contact, for an access to a shared home.

The police officer, protecton officer or magistrate who receives the domestic violence complaint must inform the victim about the protection order or financial relief order, custody order, stay order and the right to compensation. If defendant violates the protection order then he is liable to one year in jail or a fine. If the protection officer refuses to perform his duties, he can be imprisoned for one year or fined Rs 20,000 or both.

Another important act, the Maintenance and Welfare of Parents, and Senior Citizens Act is an innovative law aimed at protecting the elderly and preventing adult abuse, which is a growing problem in many countries, including India. Under this law, children or adult legal heirs are under an obligation to support parents or senior citizens over the age of 60 to live a normal life that they cannot sustain themselves from their own income.[5] If the child or legal heirs ignore or refuse the senior citizen, the tribunal may issue an order asking the children or legal heirs to pay a monthly allowance for their care.

End-Notes:
  1. Kumarvelu Chokalingam, ‘Measures for Crime Victims in the Indian Criminal Justice System’ (2008) UNAFEI, available at: https://www.unafei.or.jp/publications/pdf/RS_No81/No81_11VE_Chockalingam.pdf
  2. Nandini Satpathy v. P.L. Dani, (1978) SCC 424
  3. S.A. Karim v. State of Karnataka, (2000) 8 SCC 710
  4. S. Muralidhan, ‘ Rights of Victims in the Indian Criminal Justice System’ (2004) IELRC, available at http://www.ielrc.org/content/a0402.pdf
  5. K. Chokalingam, supra.

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