[P]eople by and large have lost confidence in the criminal justice system�..
Victims feel ignored and are crying for attention and justice.
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
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
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 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
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.
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
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.
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
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.
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
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
, (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.
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
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
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.
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
Written By: Dinesh Singh Chauhan, Advocate
- High Court of
Judicature, J&K, Jammu.
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