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Victim’s Restitution: A Fading Point In Criminology

[P]eople by and large have lost confidence in the criminal justice system….. Victims feel ignored and are crying for attention and justice.

Introduction
The victim constitutes the most important as well as the most aggrieved entity in any criminal justice administration. The emergence of victimology movement in the late 1970s and early 1980s in the United States of America (U.S.) is credited for putting at the forefront the plights of the victims by describing them as the forgotten entity in the criminal justice administration. The movement in the U.S. was a result of the continuous neglect and ignorance of the rights of the victims in the criminal justice process.

The story holds true for India also. In India, it is widely believed that victims do not have sufficient legal rights and protections, and hence they are considered to be the most neglected entity in the entire criminal justice administration. There is a general feeling that unless Justice to the victims is made the focal point of the Indian criminal justice administration, the system is likely to become an institution for perpetuation of injustice against the victims.

Unfortunately in India, after the crime is reported and the criminal motion is brought into force, the entire focus tilts towards the accused, forgetting completely the victims’ rights and perspectives. As a result, the victims are sometime termed as forgotten entity or marginalized entity in the Indian criminal justice administration. The unresponsive attitude of the criminal justice administration contributes to the plights and pains of the victims in many and varied ways.

When we look at the criminal justice administration along with its procedure, we find that it is tilted more and more in favour of the accused at the expense of the rights of the victims. The accused have been provided with protection at all the stages - pre trial, trial and post trial of the criminal justice. As soon as the crime is committed and accused is nabbed, effort is made to provide him with all the rights such as the right to legal representation, right to medical examination, production before the magistrate within 24 hours, right to be informed of the ground of arrest, etc.

However, as against this, victim is left at his/her mercy. The fine imposed on the accused form part of the compensation to the victim. However, the fine amount is too inadequate to bring any substantial meaningful changes in the life of the victim. Further, rehabilitation is the most neglected area in the entire criminal justice administration.

Since rehabilitation has financial implications, the State generally neglects this dimension. However, such attitude of the State adds to the plights of the victims especially when victims have been subjected to sexual offence, which at times result in loss of employment, unwanted pregnancy, mental trauma, and ostracization from society and several other problems.

Hence, for all these reasons, victims continue to be the marginalized entity of the Indian criminal justice administration. However, in the last few years, with the growing awareness regarding the plights of the victims, efforts have been made to undo the situation. e. g., some changes have been made in the law and procedure to take care of the victims’ rights. One such example is the insertion of Victim Compensation Scheme in Section 357-A of the Criminal Procedure Code (Cr. P. C), 1973 (inserted by Act 5 of 2009).

Restorative Justice
Restorative Justice is a new movement in the fields of victimology and criminology. Acknowledging that crime causes injury to people and communities, it insists that justice repair those injuries and that the parties be permitted to participate in that process. Restorative Justice Programs, therefore, enable the victim, the offender and affected members of the community to be directly involved in responding to the crime.

They become central to the criminal justice process, with governmental and legal professionals serving as facilitators of a system that aims at offender accountability, reparation to the victim and full participation by the victim, offender and community. The restorative process of involving all parties – often in face-to-face meetings – is a powerful way of addressing not only the material and physical injuries caused by crime, but the social, psychological and relational injuries as well.

When a party is not able, or does not want, to participate in such a meeting, other approaches can be taken to achieve the restorative outcome of repairing the harm. In addressing offender accountability these approaches can include restitution, community service and other reparative sentences. In addressing victim and offender reintegration they can include material, emotional and spiritual support and assistance.

A definition of restorative justice that emphasizes the importance of both restorative processes and outcomes is the following: Restorative Justice is a theory of Justice that emphasizes repairing the harm caused or revealed by criminal behaviour. It is best accomplished through co-operative processes that include all stakeholders.

Restorative Justice is different from contemporary criminal justice in several ways.
First, it views criminal acts more comprehensively -- rather than defining crime as simply lawbreaking, it recognizes that offenders harm victims, communities and even themselves.
Second, it involves more parties in responding to crime -- rather than giving key roles only to government and the offender, it includes victims and communities as well.
Finally, it measures success differently -- rather than measuring how much punishment is inflicted, it measures how much harm is repaired or prevented.

Victimology must find fulfillment not through barbarity but by compulsory recoupment by the wrongdoer of the damage inflicted, not by giving more pain to the offender but by lessening the loss of the forlorn. - Krishna Iyer J. in [Maru Ram & Ors. Vs Union of India & Ors, AIR 1980 SC 2147.

The traditional methods of criminology have been unsuccessful in furthering the aims of criminal justice. A shift from retribution to restitution began in the mid 1960’s and gained momentum in the following decades. Victim Restitution in Criminal Law Process: A Procedural Analysis sums up the historical perspective of the concept of restitution in the following words: Far from being a novel approach to sentencing, restitution has been employed as a punitive sanction throughout history. In ancient societies, before the conceptual separation of civil and criminal law, it was standard practice to require an offender to reimburse the victim or his family for any loss caused by the offense. The primary purpose of such restitution was not to compensate the victim, but to protect the offender from violent retaliation by the victim or the community.

The jurisprudence that evolved over time created segregation between the civil and the criminal law and stereotyped compensation into a civil remedy within the domain of civil courts. However, in recent times, restitution, rehabilitation and assistance to the victims have witnessed a steady growth.

Restitution, compensation and damages are the mechanisms devised by the Courts and the Legislature to empower the Compensatory jurisprudence. Restitution is a court ordered payment from a convicted offender, whereas, compensation is a government program that pays the victim where the compensation is not fully available or recoverable from the perpetrator.

According to, Duties of frontline professionals towards securing justice for victims: a manual , in the event that the offender cannot be traced or identified, the victim may make an application to the DLSA/SLSA for compensation and adequate compensation must be granted within two months. Restitution is ordered by a criminal court after the offender has been found guilty. Civil damages are ordered in a lawsuit in a civil court. Victims of crime can obtain both restitution and civil damages.

A victim of crime is one who triggers the criminal process. A victim according to Section 2 (wa) of Code of Criminal Procedure, 1973 is defined as a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression victim includes his or her guardian or legal heir.

The Delhi High Court, in the landmark Judgment of [Karan Vs, 2020 DLT 352] has devised a formula of Victim Impact Report to determine the quantum of compensation to the victim in conjunction with the paying capacity of the accused. The Victim Impact Report is to be filed by the Delhi State Legal Services Authority (DSLSA) in every criminal case after conducting a summary inquiry.

After the conviction of the accused, the trial Court shall direct the accused to file the affidavit of his assets and income within 10 of crime on the victim, the expenses incurred on prosecution as well as the paying capacity of the accused. If the accused does not have days, thereafter, a summary inquiry is conducted to ascertain the impact the capacity to pay the compensation or the compensation awarded against the accused is not adequate for the rehabilitation of the victim, the Court shall invoke Section 357-A of the Cr. P. C to recommend the case to DSLSA to award compensation from the Victim Compensation Fund under the Delhi Victims Compensation Scheme, 2018.

This format of Victim Impact Report has been developed as against the Victim Impact Statement, which is an instrument of victim participation that allows victims to directly address the Court in its own words as to how the crime impacted them. It allows the victim to come to terms with the offence and makes the offender perceive and realize the impact of crime on the victims.

In countries like the United States, the Judges may use this information to determine an offender's sentence; a parole board may use this to decide whether to grant parole and what conditions to impose in releasing an offender. Fortunately, Victim Impact Report which has also been suggested by the Committee for Reforms in Criminal Law is not widely recognized in India, as it does not focus upon victim rehabilitation rather diverts the attention more towards the accused.

It also adds to the workload of already overburdened courts, whereas, Victim Impact Report shifts the burden upon the DSLSA of conducting the inquiry and submitting the report. Another major drawback of Victim Impact Report is that it fosters different punishment for the same offence based on the impact it has on the victim.

Although Section 357 of Cr. P. C provides the Courts with the power to award compensation to the victim both, out of the sentence of fine and exclusive of the sentence of fine imposed on the accused the application of the same has been very limited. In [Hari Singh Vs Sukhbir Singh & Ors, (1988) 4 SCC 551], the Supreme Court lamented the failure of Courts in awarding compensation to the victims in terms of Section 357 (1) of the Cr. P. C.

The Court recommended to all Courts to exercise the power available under Section 357 liberally, to meet the ends of justice. Cut to the Judgment of [Ankush Shivaji Gaikwad Vs State of Maharashtra, (2013) 6 SCC 770] in 2013, where although the Court held that the lower Courts must apply judicial mind and record reasons for passing, or not passing orders pertaining to the use of Section 357- effectively making its application mandatory, did not grant compensation to the victim.

There are several constraints that the lower Courts face while applying Section 357 as it allows them to issue orders for only such compensation as otherwise recoverable in a Civil Court. According to the 41st Report of The Law Commission of India, the significance of the requirement that compensation should be recoverable in Civil Court is that the act which constitutes the offence in question should also be a tort. Secondly, the compensation can only be paid out of the amount of fine recovered.

It can in no case exceed the amount of fine. Thirdly, there is no Scheme of Interim Compensation under Section 357, as Section 357 (2) clearly declares that if the fine is imposed in a case which is subject to appeal, no such payment shall be made before the period allowed for presenting the appeal has elapsed or, if an appeal be presented, before the decision of the appeal. Fourthly, compensation can be ordered only if the accused is convicted and sentenced, although to tackle that Section 357-A was introduced by amendment in 2009, where the Court will direct the State to pay the compensation in cases of acquittal or discharge or where the compensation by the accused is not adequate for such rehabilitation.

Justice R. L. Narasimham, member of 42nd Law Commission recommended deletion of Section 545 (Now Section 357 in the Code of 1973) of Cr. P. C and insertion of a new section in Indian Penal Code as he found the section unsatisfactory because compensation can be given only in money to the injured party and there is no provision for direct reparation for harm caused. Secondly, the procedure involved in the section is circuitous, dilatory, expensive, and caused much harassment to the injured complainant. Lastly, it does not cover cases of those accused persons who are not able to pay the fine.

However, the contribution of the landmark verdict of [Karan Vs NCT of Delhi (supra) and [Kirti Vs Oriental Insurance Company Ltd., LL (2021) SC 2] to the compensatory jurisprudence will be unparalleled. In the case of [Kirti Vs Oriental Insurance Company Ltd (supra), Justice N. V. Ramana while disposing of an appeal arising out of a motor accident compensation claim summarized his opinion regarding the calculation of notional income for homemakers and the grant of future prospects with respect to them for the purposes of compensation.

It is a recognition of the multitude of women who are engaged in this activity, whether by choice or as or as a result of social/ cultural norms. It signals to the society at large that the law and the Courts of the Land believe in the value of labor, services and sacrifices of homemakers. It is an acceptance of the idea that these activities contribute in a very real way to the economic condition of the family, the economy of the nation, regardless of the fact that it may have been traditionally excluded from economic analyses.

In another progressive move in [Suresh Vs State of Haryana, (2015) 2 SCC 227], the Supreme Court interpreted Section 357 of Cr. P. C, to include interim compensation also. The Court observed that:
It is the duty of the Courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an application or on its own motion, the Court ought to direct grant of interim compensation, subject to final compensation being determined later.

Such duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the victim. Gravity of offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and circumstances of an individual case.

A crime is deemed to be an offence against the society and the de-humanized system that imparts Justice reduces the victim to any other piece of evidence. According to, Duties of frontline professionals towards securing justice for victims: a manual, in Hobbesian terminology, the Leviathan fails the victims twice:
first in failing to secure their life, liberty and property from the transgressions of another and in the second instance failing to fully and completely restore the victims to their rightful position. It is pertinent that the jurisprudence ameliorates the balance between the rights of the victim and the deterrence that the society seeks to create because criminal justice system is meant for doing justice to all – the accused, society and the victim.

Conclusion
Far from being into a novel approach to sentencing, restitution has been employed as a punitive sanction. In earlier societies, it was standard practice to require an offender to recompense the victim or his family for any loss caused by the offence. The primary focus of restitution was not to compensate the victim but to protect the offender from violent retaliation by the victim or the community. It was a means by which the offender could buy back the peace he had broken. As the State gradually established a monopoly over the institution of punishment, and a division between civil and criminal law emerged. Civil Law describes the victim’s right to compensation.

The movement for victim assistance will have to go a long way before any tangible result can be produced. The endeavour must be to make the victim an integral entity of the criminal justice administration from the present status of forgotten entity in the criminal justice administration. No criminal justice administration can afford to ignore the rights and plights of the victims of the ever increasing number of crimes. The plights of the victims are many and varied, and hence it requires greater attention by the criminal justice administration. The need is to make the system more sensitive to the plights of the victims.

Written By: Dinesh Singh Chauhan, Advocate - High Court of Judicature, J&K, Jammu.
[email protected], [email protected]

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